Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2003 Decided December 9, 2003
No. 02–1326
SAFE FOOD AND FERTILIZER, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
On Petition for Review of an Order of the
Environmental Protection Agency
Riyaz A. Kanji argued the cause for petitioners. With him
on the briefs were Melissa Powers, Nina A. Mendelson and
Charles M. Tebbutt.
Martin F. McDermott, Attorney, U.S. Department of Jus-
tice, argued the cause for respondent. With him on the brief
was Steven E. Silverman, Attorney, U.S. Environmental Pro-
tection Agency.
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
Before: EDWARDS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Zinc fertilizers can be
produced either from virgin materials or recycled byproducts
of certain industrial processes. In the rule under review
here, the Environmental Protection Agency resolved that
Subtitle C of the Resource Conservation and Recovery Act
(‘‘RCRA’’), 42 U.S.C. § 6901, would not apply to the recycled
materials used to make zinc fertilizers, or to the resulting
fertilizers themselves, so long as they met certain handling,
storage and reporting conditions and (in the case of the
fertilizers themselves) had concentration levels for lead, ar-
senic, mercury, cadmium, chromium, and dioxins that fall
below specified thresholds. Petitioners claim that both the
materials and the fertilizer are ‘‘hazardous wastes’’ and that
therefore the EPA must regulate them under RCRA’s Subti-
tle C.
A material is a ‘‘hazardous waste’’ under RCRA if it is a
‘‘solid waste’’ as defined in 42 U.S.C. § 6903(27) and is
‘‘hazardous’’ as defined in 42 U.S.C. § 6903(5). Both parties
agree that the materials are ‘‘hazardous’’ as that word of art
is used under RCRA, although (as we shall see) the EPA does
not in fact regard them as posing any material hazard if they
comply with the conditions specified by the rule. The issue is
whether the materials in question are ‘‘solid waste.’’ The
EPA has concluded that they are not—that so long as they
satisfy the stated conditions, they have not been ‘‘discarded’’
as RCRA’s definition of solid waste uses the term.
We remand the case for further explanation regarding a
narrow issue—the EPA’s selection of an exemption level for
chromium. In all other respects we affirm.
* * *
The regulatory status quo before adoption of the present
rule was as follows: The EPA classified the secondary mate-
3
rials recycled to make zinc fertilizer as ‘‘solid waste,’’ and, if
‘‘hazardous,’’ as ‘‘hazardous waste’’ subject to RCRA Subtitle
C regulation until a final commercial product was produced.
50 Fed. Reg. 614, 646/2–47/2, 666/2–3 (Jan. 4, 1985). In
addition, a commercial product derived from a hazardous
waste, if used on the land in a manner constituting ‘‘disposal,’’
was exempt from other Subtitle C regulation so long as it
satisfied the Land Disposal Restriction (‘‘LDR’’) treatment
standards for each hazardous waste in the product. 53 Fed.
Reg. 31,138, 31,212 (Aug. 17, 1988); see also 55 Fed. Reg.
22,520 (June 1, 1990) (modifying standards). The EPA im-
posed this LDR standard on most zinc fertilizers made from
recycled hazardous materials, but excepted ones made from
the electric arc furnace dust generated in steel production,
commonly known by its RCRA designation ‘‘K061.’’
In 1998 the EPA responded to our decision in Chemical
Waste Management v. EPA, 976 F.2d 2 (D.C. Cir. 1992), by
adopting a new rule tightening its general LDR standards.
63 Fed. Reg. 28,556 (May 26, 1998). Several fertilizer manu-
facturers warned the EPA that application of the new stan-
dards would have adverse environmental effects: their prod-
ucts would be driven from the market in favor of the more
contaminated—but exempt—K061 fertilizers. As a result,
the EPA stayed the application of the 1998 LDR standards to
zinc fertilizers and expressed its intention to review the whole
issue of fertilizers made from recycled materials in a new
rulemaking, see 63 Fed. Reg. 46,332 (August 31, 1998), which
it launched in November 2000, see Proposed Rule, 65 Fed.
Reg. 70,954, 70,956/2–3 (Nov. 28, 2000).
The new rule eliminates the special exemption for K061
fertilizers from Subtitle C regulation, but provides a broad
conditional exemption both for certain hazardous secondary
materials used in the production of zinc fertilizers and for the
fertilizers themselves. The rule exempts the feedstocks if
they are not speculatively accumulated and meet certain
storage, record-keeping and notice requirements consistent
with use of the feedstocks as valued commodities rather than
wastes. It exempts zinc fertilizers made with such feedstocks
if fertilizer manufacturers meet certain testing and record-
4
keeping requirements and if the fertilizers themselves meet
maximum concentration levels for six contaminants—lead,
arsenic, cadmium, chromium, mercury, and dioxins. Feed-
stocks failing to meet the feedstock conditions would be
subject to regular Subtitle C regulation, and non-compliant
fertilizer would be subject to the LDR standards. The EPA
reasoned that so long as these materials met the specified
conditions they should not be seen as ‘‘discarded’’ within the
meaning of RCRA’s definition of ‘‘solid waste,’’ 42 U.S.C.
§ 6903(27). Final Rule, 67 Fed. Reg. 48,393/1 (July 24, 2002).
Petitioners, nonprofit organizations opposed to the new
rule, filed a challenge pursuant to 42 U.S.C. § 6976(a). They
attack the new exemptions as contrary to RCRA’s plain
meaning and as unreasonable. They also attack an element
of the regulatory status quo ante, namely (for fertilizer not
qualifying for the new exemption) the 1988 decision allowing
fertilizers to comply with RCRA by satisfying the LDRs for
each hazardous waste they contain, rather than stricter stan-
dards.
Jurisdictional issues. At the outset, the EPA poses two
jurisdictional objections. First, it disputes petitioners’ stand-
ing, arguing that, since fertilizers made from recycled materi-
als are chemically identical to fertilizers made from virgin
materials already on the market, petitioners cannot show
constitutionally sufficient injury. The EPA also frames the
argument as a claim that petitioners’ injury is not redressa-
ble, because even the complete suppression of recycled fertil-
izer would leave virgin zinc fertilizer in use, with what the
EPA posits are identical effects.
Whatever the merits of the EPA’s theory, the facts don’t
match its premise. The record does not support the claim
that contaminant concentrations in recycled fertilizer under
the EPA’s rule will be literally identical to those in virgin
materials. Rather, the rule permits contaminant concentra-
tions in fertilizer from recycled zinc materials at levels higher
than the highest concentrations that the record shows for
existing fertilizers made from virgin materials. Though the
EPA argues that these differences do not have demonstrable
5
health or environmental impacts, a conclusive showing of such
impacts isn’t necessary for purposes of standing. Here,
plaintiffs’ merits claim overlaps with their contention on
standing: if there were a violation of RCRA and petitioners
were exposed to the materials, that fact alone would suggest
the probability of an environmental impact rising at least to
the modest levels necessary for standing. See, e.g., United
States v. SCRAP, 412 U.S. 669, 690 n.14 (1973). See also
Ass’n of American Railroads v. Dep’t of Transp., 38 F.3d 582,
585 (D.C. Cir. 1994) (where plaintiffs’ merits claim, if correct,
would establish causation for standing purposes, that element
of standing is deemed adequately shown).
The EPA’s second jurisdictional challenge addresses only
the petitioners’ attack on the residual rule, which allows
fertilizers to satisfy RCRA by meeting the LDR standards.
This, the EPA argues, is an impermissible ‘‘back-door’’ chal-
lenge to the 1988 rulemaking and is barred by the statutory
requirement that petitions for review of RCRA rules be filed
within 90 days of promulgation. 42 U.S.C. § 6976(a)(1). We
agree.
It was in 1988 that the EPA adopted the rule that fertiliz-
ers made with recycled materials could comply with RCRA by
meeting the LDR standards. The new rule leaves that
principle untouched for fertilizers not qualifying for the new
exemption. The EPA could not have been more explicit in
the present rulemaking that the agency was ‘‘not accepting
comment on these past determinations [i.e., the 1988 determi-
nation on exclusive use of the LDR standards] or otherwise
reopening these issues.’’ Proposed Rule, 65 Fed. Reg. at
70,959/1 n.2. Thus, petitioners can challenge the application
of the LDR standards to fertilizers only if they show that the
EPA reopened these standards in spite of the agency’s explic-
it efforts not to do so. They make two arguments to support
such a reopening claim. Neither is persuasive.
First, petitioners assert that the EPA explicitly reopened
the LDR standards when it invited comment on the alterna-
tive of ‘‘retaining the current [ ] regulatory structure [i.e., the
application of the LDR standards] for hazardous wastes that
6
are used to make zinc fertilizers,’’ 65 Fed. Reg. at 70,964/2.
But it is absurd to suppose that every time an agency
requests parties to compare the regulatory status quo with
specific proposed alternatives, all facets of the status quo
become fair game for new challenges. See, e.g., Amer. Iron
& Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989).
Second, petitioners invoke Public Citizen v. NRC, 901 F.2d
147, 152 (D.C. Cir. 1990), for the proposition that an agency,
by reconsidering and reinstating an old rule, implicitly opens
that rule to fresh challenge even when the agency does not
mean to do so. But the predicate of Public Citizen is
missing. Not only have petitioners failed to show that the
EPA reconsidered the role of the LDR rule, but the record
sections they cite indicate the opposite: the EPA considered
and discussed the continued applicability of the LDR stan-
dards to products that would not be exempted under the new
rule, but it never addressed the question whether those
standards were generally appropriate for fertilizer products.
See ‘‘EPA’s Proposed Regulations for Zinc Fertilizers Made
from Recycled Hazardous Secondary Materials: Response to
Comments,’’ Docket No. 8 (undated) at 15 (items 11–12), 24
(item 10). Petitioners’ challenge to the EPA’s use of the
LDR standards is therefore barred.
Merits. RCRA defines ‘‘solid waste’’ to mean
any garbage, refuse, sludge from a waste treatment
plant, water supply treatment plant, or air pollution
control facility and any other discarded material.
42 U.S.C. § 6903(27) (emphasis added). Petitioners challenge
the EPA’s decision that recycled materials complying with
the specified conditions are not ‘‘discarded’’ material. We
review under the standard principles of Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Unless the statute resolves the issue, we must uphold the
EPA so long as its interpretation is reasonable.
Petitioners assert that, as a matter of plain meaning, the
materials in question are ‘‘discarded’’ even though they are
recycled in a useful product. They claim that under our cases
7
recycled material destined for immediate reuse within an
ongoing industrial process is never considered ‘‘discarded,’’
whereas material that is transferred to another firm or
industry for subsequent recycling must always be so viewed.
Petitioners misread our cases. We have held that the term
‘‘discarded’’ cannot encompass materials that ‘‘are destined
for beneficial reuse or recycling in a continuous process by
the generating industry itself.’’ Am. Mining Cong. v. EPA
(‘‘AMC I’’), 824 F.2d 1177, 1186 (D.C. Cir. 1987); see also
Ass’n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1056
(D.C. Cir. 2000). We have also held that materials destined
for future recycling by another industry may be considered
‘‘discarded’’; the statutory definition does not preclude appli-
cation of RCRA to such materials if they can reasonably be
considered part of the waste disposal problem. Am. Petro-
leum Inst. v. EPA, 906 F.2d 729, 740–41 (D.C. Cir. 1990);
Am. Mining Cong. v. EPA (‘‘AMC II’’), 907 F.2d 1179, 1186–
87 (D.C. Cir. 1990). But we have never said that RCRA
compels the conclusion that material destined for recycling in
another industry is necessarily ‘‘discarded.’’ Although ordi-
nary language seems inconsistent with treating immediate
reuse within an industry’s ongoing industrial process as a
‘‘discard,’’ see AMC I, 824 F.2d at 1185, the converse is not
true. As firms have ample reasons to avoid complete vertical
integration, see generally Ronald Coase, ‘‘The Nature of the
Firm,’’ 4 Economica 386 (1937), firm-to-firm transfers are
hardly good indicia of a ‘‘discard’’ as the term is ordinarily
understood.
Petitioners make a second, more specific claim derived
from the statutory language. They say that RCRA’s defini-
tion of solid waste as ‘‘any garbage, refuse, sludge from TTT
[an] air pollution control facility and any other discarded
material’’ includes K061 sludge (which is produced by air
pollution control facilities) even if that sludge is not ‘‘discard-
ed.’’ Petitioners’ reading of the statute is certainly plausible.
The enumeration of specific types of solid waste prior to the
catch-all ‘‘other discarded materials’’ might mean that the
enumerated materials are always ‘‘solid waste’’ for RCRA
purposes, regardless of the prevailing understanding of ‘‘dis-
8
carded.’’ But the EPA urges that the phrase ‘‘other discard-
ed materials’’ should be read to mean that the listed materials
are solid waste only if they are also ‘‘discarded.’’ This
reading is also sensible, as well as consistent with the ‘‘re-
verse ejusdem generis’’ principle occasionally invoked by this
court, under which ‘‘the phrase ‘A, B, or any other C’
indicates that A is a subset of C,’’ United States v. Williams–
Davis, 90 F.3d 490, 508–09 (D.C. Cir. 1996); Dong v. Smith-
sonian Institution, 125 F.3d 877, 879–80 (D.C. Cir. 1997).
We cannot find that the statutory text precludes the EPA’s
reading.
Thus we turn to the question ‘‘whether the agency’s inter-
pretation of TTT ‘discarded’ [is] permissible, that is, reason-
able and consistent with the statutory purpose.’’ AMC II,
907 F.2d at 1186–87 (internal citations and quotation marks
omitted). The answer depends on the EPA’s reasons for
finding that the materials involved here should not be regard-
ed as ‘‘discarded’’ so long as they meet its conditions. The
EPA’s explanation is that market participants treat the ex-
empted materials more like valuable products than like nega-
tively-valued wastes, managing them in ways inconsistent
with discard, and that the fertilizers derived from these
recycled feedstocks are chemically indistinguishable from
analogous commercial products made from virgin materials.
We need not consider whether a material could be classi-
fied as a non-discard exclusively on the basis of the market-
participation theory. At oral argument EPA counsel rested
the agency’s case on the combination: market participants’
treatment of the materials, together with EPA-required man-
agement practices and contaminant limits assuring substan-
tial chemical identity. If this combination is enough to estab-
lish that the recycled fertilizers are not ‘‘discarded’’ when
used on the land, it follows that feedstocks used to manufac-
ture them are also not ‘‘discarded’’—and therefore not
waste—since the feedstocks are ingredients in a non-
discarded final product.
9
Petitioners principally attack the legal and factual basis for
the EPA’s identity principle. As a matter of law, petitioners
claim—correctly, as far as we know—that no court has yet
endorsed the identity principle that the EPA urges. But this
is hardly surprising, as petitioners point to no case where the
EPA had both proposed the principle and been challenged.
The question, apparently of first impression, is whether the
identity principle, when used in conjunction with indicators
like market valuation and management practices, is a reason-
able tool for distinguishing products from wastes. We find
that it is. Nobody questions that virgin fertilizers and feed-
stocks are products rather than wastes. Once one accepts
that premise, it seems eminently reasonable to treat materials
that are indistinguishable in the relevant respects as products
as well.
But, petitioners argue, even if the identity principle could
in theory justify exclusion of certain materials from RCRA
regulation, its factual predicate is lacking here. The EPA set
metal contaminant limits higher—sometimes considerably
higher—than the highest level found in the twenty virgin
commercial fertilizer samples it used as its benchmark. In
most cases, the virgin commercial samples with high contami-
nant levels were themselves outliers; mean and median con-
taminant levels in commercial fertilizers were generally much
lower than the EPA’s ceilings. Compare 67 Fed. Reg. at
48,403/3 with ‘‘Metal Concentrations in Zinc Sulfate Mono-
hydrate—Summary of Selected Data,’’ Docket No. 34 (undat-
ed) (hereinafter ‘‘Data Summary’’). We display the specific
numbers in the table below. Unless the means for recycled
inputs and fertilizers qualifying for the conditional exemption
could be expected to be far lower than the EPA’s ceilings, a
matter on which the record is silent, there seems little reason
to expect those means to be absolutely ‘‘identical’’ to those of
virgin materials.
But we do not believe that affirmance of the EPA’s princi-
ple requires literal identity, so long as the differences are so
slight as to be substantively meaningless. Here, the appar-
10
ent differences in the EPA’s exclusion ceilings and the con-
taminant levels in the virgin fertilizer samples lose their
significance when put in proper perspective—namely, a per-
spective based on health and environmental risks.
According to a risk assessment study commissioned by the
Fertilizer Institute, which the EPA found ‘‘did not differ
dramatically’’ from its own study, 67 Fed. Reg. at 48,405/1,
four of the metal contaminants (lead, arsenic, mercury, and
cadmium) do not endanger human health or the environment
until they are present in concentrations between 20 and 372
times the EPA ceilings, id. Viewed in that light, the differ-
ences between the EPA’s criteria and the contaminant con-
centrations found in virgin commercial fertilizers are not so
large as to undermine the EPA’s application of its identity
principle.
Comparison of EPA Limit and Virgin Commercial Samples
for Fertilizer with 35.5% Zinc Content
(Sources cited above; values given in parts per million
(‘‘ppm’’)).
Virgin
Commercial Virgin Fertilizer
EPA Sample Commercial Institute
Exclusion Arithmetic Sample Risk
Contaminant Limit Mean Maximum Threshold
Arsenic 10.7 3.7 20 3,976
Cadmium 49.7 15.6 48 2,947
Chromium 21.3 2.0 8 Not
reported
Lead 99.4 25.3 89 16,437
Mercury 10.7 1.7 10 213
Petitioners note that the EPA said of the study underlying
the Fertilizer Institute’s proposed standards that ‘‘[a]s with
other similar risk assessments, including EPA’s TTT, a num-
ber of simplifying assumptions and models were used to
address data gaps or other uncertainties inherent in that
analysis.’’ Id. Petitioners therefore suggest that the EPA
could give the study no weight. But the EPA made clear
11
that while a technical judgment that the Fertilizer Institute
findings were ‘‘accurate indicators of potential risks’’ would
require ‘‘additional data and more rigorous analysis,’’ id., it by
no means wrote the risk assessments off as useless. Rather,
it found them a good enough benchmark for setting technolo-
gy-based limits at levels that were tiny fractions of the risk
thresholds. The EPA said that its proposed exemption limits
were ‘‘considerably below levels that we estimate (albeit
roughly) to be safe for humans and ecosystems.’’ Id. Peti-
tioners have pointed us to nothing in the record, and we have
found nothing on our own, impugning the risk assessments or
otherwise undermining the EPA’s determination.
Although the EPA used a somewhat different method for
setting the exclusion level for dioxins, we conclude that the
above logic also supports that limit. Instead of basing the
limit on concentration levels found in virgin materials, the
EPA set a limit of 8 parts per trillion (‘‘ppt’’), similar to the
average background dioxin concentration in soil. The EPA
noted that the limited data on commercial zinc fertilizers
suggest that virgin fertilizers generally have much lower
dioxin concentrations, usually under 1 ppt. 67 Fed. Reg. at
48,406/3. But it observed that prior risk assessments indicat-
ed that dioxin did not pose a risk at the low concentrations in
ordinary soil, 65 Fed. Reg. at 70,972/3; 67 Fed. Reg. 48,406/2,
and that none of the commentators who proposed more
stringent dioxin limits questioned the EPA’s basic risk find-
ings on the subject, id. at 48,406/3. In the absence of any
indication of health and environmental risks, it was hardly
unreasonable for the EPA to treat 8 ppt and 1 ppt as
‘‘identical’’ enough to support a finding that recycled materi-
als with 8 ppt dioxin are products rather than ‘‘discarded’’
wastes.
The analysis is somewhat different, however, for chromium.
While the original Fertilizer Institute study apparently in-
cluded chromium, see letter from Fertilizer Institute to EPA,
dated February 26, 2001, at 9 n.9, the summary of the study’s
results actually submitted to the EPA did not include a
proposed chromium risk threshold comparable to those for
lead, arsenic, mercury, and cadmium, id. at 11, and the EPA
12
did not report any such risk threshold in its final rulemaking
notice, 67 Fed. Reg. at 48,405/1. Though the EPA risk study
included an analysis of chromium, the results of this study are
not easily translatable by lay judges into a form comparable
with the proposed exclusion ceiling.
Furthermore, the difference between the EPA’s proposed
chromium threshold and the chromium concentrations found
in the existing products reported by the EPA is particularly
striking. The EPA set its chromium exclusion level at 21.3
ppm for fertilizer with 35.5% zinc content, 67 Fed. Reg. at
48,403/3. Of the twenty commercial virgin fertilizer samples
reported by the EPA, six included test results for chromium.
Of these six, one had a chromium concentration of 8 ppm; the
other five all had chromium concentrations of less than 1
ppm. Data Summary. The EPA’s chromium exclusion level
thus appears to be more than double the highest virgin
commercial sample, ten times the commercial sample mean,
and twenty times the commercial sample median. Given that
the EPA has not pointed to anything in the record indicating
that these differences in chromium concentrations are trivial
from a health and environment perspective, we cannot affirm
on the basis of the identity principle. We therefore remand
to the agency for an explanation as to whether the differences
that its rule allows are irrelevant when considered in light of
possible effects on human health or the environment.
Independent of the statutory argument, petitioners claim
that the EPA acted arbitrarily and capriciously by failing to
explain adequately its decision, which they characterize as a
choice of technology-based exclusion thresholds rather than
ones minimizing risks to human health and the environment.
Petitioners also claim that the EPA failed to explain its
decision not to set thresholds for other hazardous heavy
metals. As to the first, the EPA in fact explained that its
technology-based exclusion limits ‘‘are considerably below
levels TTT safe for humans and ecosystems,’’ and that setting
stricter limits would yield no substantial environmental bene-
fits. 67 Fed. Reg. 48,405/2–3. This conclusion is adequately
supported by evidence in the record. As to the decision not
to set limits for additional metals, the EPA explained that the
13
commenters proposing such limits failed to provide data
indicating the specified metals’ presence in zinc fertilizers.
67 Fed. Reg. 48,405/3.
* * *
The case is remanded to the EPA for clarification of its
exemption level for chromium (and any modifications that
may prove appropriate). Otherwise, the petition for review is
denied.
So ordered.