*1 RESOURCES NATURAL DEFENSE
COUNCIL, INC., al., et
Petitioners,
UNITED STATES ENVIRONMENTAL AGENCY,
PROTECTION
Respondent. Institute,
Edison Electric al.,
et Intervenors.
No. 92-1371. Appeals,
United States Court of
District of Columbia Circuit.
Argued Nov. 1993. May
Decided 1994.
As Amended June *2 Case, argued peti- disagree deny petition David R. the cause We and therefore him on the briefs was Eli D. for review. tioners. With Guth, Eilbott, Washington, Joseph H. DC. City, appearance.
New York entered I. BACKGROUND McDonough, Atty., Dept, of *3 Eileen T. U.S. C, §§ RCRA’s subtitle 42 U.S.C. 6921- DC, Justice, Washington, argued the cause 6939b, “‘cradle-to-grave’ establishes a regu- respondent. With her on the brief were latory overseeing structure the safe treat- Starfield, Counsel, E. Asst. Lawrence Gen. ment, storage disposal and of hazardous Hill, Randolph Atty., L. Environ- and U.S. EPA, Technologies waste.” Corp. United Agency, Washington, mental Protection DC. (D.C.Cir.1987). 821 .Congress F.2d 716 joint sup- brief for intervenors in On supplied only a broad definition “hazard- Frick, respondent M. port of were G. William RCRA,1 delegating ous waste” in Cox, Allen, Douglas K. H. Elizabeth Toni promulgating regulations identifying task of Green, Thiede, Marianne Mancino and Wash- the characteristics of hazardous waste and Rave, Jr., ington, Norman L. entered DC. listing specific wastes as hazardous. 42 appearance for intervenors Edison Elec. § U.S.C. 6921. In accordance with this stat- Institute, al. et command, utory EPA has constructed two through avenues which a waste be des- WALD, GINSBURG, Before ignated recently as “hazardous.” We ex- SENTELLE, Judges. Circuit plained bipartite system: First, published EPA has several lists of Opinion for the filed Court Circuit (“listed wastes”) specific hazardous wastes Judge SENTELLE. in which EPA has described the wastes assigned a Opinion dissenting concurring “waste code” to each one. part Second, § Subpart'D. 40 C.F.R. part Judge filed Circuit WALD. has identified four characteristics of haz- SENTELLE, Judge: Circuit ignitability, corrosivity, ardous wastes: reactivity toxicity. petition challenges 40 This for review a final See C.F.R. § Any exhibiting 261.20- solid waste determination of the Environmental Protec- (“EPA”) one or more of these Agency tion not to list characteristics is automatically disposal deemed a “hazardous destined for as a hazardous waste waste” subject to Subtitle C of the RCRA even if under subtitle C of the Resource Conserva- Recovery (“RCRA”), it is not a “listed” waste. tion and Act of Í976 42 (1988). §§ 6921-6939b The EPA, American Petroleum Inst. v. 906 F.2d evaluated used oil under its technical (D.C.Cir.1990). criteria, 261.11, § and concluded In order to determine which wastes should that used oils destined for need not wastes, regulated as “listed” hazardous be listed as hazardous waste because the developed EPA has a set of criteria. panoply existing regulations gov- federal part, 261.11. these relevant oil, erning of used id. provide: criteria 261.11(a)(3)(x), any plausible could control (a) mismanagement, scenario of used oil id. The Administrator shall list a solid 261.11(a)(3)(vii). charge only upon Petitioners waste as a hazardous waste de- termining this determination was inconsistent with that the one of solid waste meets agency’s listing regulations. following RCRA criteria: irreversible, reversible, 1004(5) incapacitating 1. Section of RCRA defines a "hazardous or ill- ness; waste” as or ' (B) pose present potential or substantial quantity, a solid waste ... which because of its concentration, chemical, hazard to human health or environment physical, or or infec- treated, stored, improperly transported, may— when tious characteristics of, cause, (A) disposed managed. significantly or or otherwise contribute to an 6903(5). mortality increase in or an increase in serious 42 U.S.C. (1) any recycled govern It of the characteristics ment standards to used oil. exhibits (1986). subpart waste identified of hazardous C. In November EPA determined that recycled
it list used oil as a haz- (1986). ardous waste. 51 (3) It contains of the toxic constitu- agency’s primarily decision rested on its and, appendix ents listed VIII after perception stigma associated with factors, considering [a eleven] set of labelling used oil as would dis- “hazardous” Administrator concludes However, courage recycling. in Hazardous capable posing present substantial potential to human Waste Treatment Council v. hazard health or (D.C.Cir.1988) (“HWTC”), improperly the environment when treat- we vacated *4 ed, stored, of, transported disposed or or ground EPA’s no-list determination on the managed. agency’s otherwise perceived reliance on the “stigma” associated with was not a (1993).2 § 40 C.F.R. 261.11 statutorily authorized basis for its decision. Petitioners here EPA’s final de- agency We remanded for the to consider cision not to list used oil as a hazardous any recycled whether oils met the technical Rule, waste under these criteria. See Final listing promulgated criteria for under 42 (1992). 21,524 Fed.Reg. 57 This decision was U.S.C. 6921. years making. Congress HWTC, After decision in our by passing amended RCRA the Hazardous supplemental proposed issued a notice of (“HSWA”), and Solid Amendments Waste rulemaking published it which information (1984) (now 98-616, Pub.L. No. 98 Stat. 3258 proposal regarding collected since the 1985 (1988)). 42 codified at U.S.C. 6935 The of used oil and that it announced specific by set EPA HSWA deadlines which considering options regula- was three for the required was to “make a final determination 1) listing tion of used oil: oil all used as identify whether to list or used automobile 2) hazardous, listing only categories certain and truck crankcase oil and oil other used as 3) hazardous, listing any of used oil as hazardous wastes under section 6921 [of hazardous, relying used oils as but instead on 6935(b). RCRA].” Soon after regulations, including other federal HSWA, passage of the announced component “characteristic” waste of RCRA proposal its to list all used oil as a hazardous C, (1985). proper management subtitle to ensure the 49,258 Fed.Reg. waste. See 50 This Supplemental of used oil. See Notice proposal by supplemental a followed no- Proposed 48,000, requesting Rulemaking, Fed.Reg. option: tice comments on another (1991). 48,019-21 20, 1992, listing only disposal May used oil destined for On relying special manage- hazardous while any announced its decision not to list (vi) specific degree any The factors EPA is to consider in The to which the constituent or making degradation product determination under bioac- constituent 261.11(a)(3) ecosystems. are as follows: cumulates in (i) (vii) toxicity presented by plausible types improper manage- The nature of the The subjected, constituent. (ii) ment to which the waste could be (viii) quantities generated The concentration of the constituent in the The of the waste generation regional waste. individual sites or on a (iii) potential any The constituent or national basis. (ix) degradation product severity toxic of the constituent to The nature and of the human migrate damage from the waste into the environment health and environmental that has oc- types improper management improper manage- under the con- curred as a result of the (a)(3)(vii) paragraph containing sidered in of this section. ment of wastes the constituent. (iv) (x) persistence any governmental by agen- The of the constituent or Action taken degradation product regulatory programs toxic of the constituent. cies or based on the (v) potential any posed by The for the constituent or health of environmental hazard degradation product toxic of the constituent to waste or waste constituent. (xi) degrade appropriate. into non-harmful constituents and the Such other factors as 261.11(a)(3)(i)-(xi). degradation. §' rate of already for as hazardous.3 See Fi these used oils are regulated destined under (1992). Rule, RCRA subtitle C as nal “characteristic wastes” petitioners, therefore, and that cannot claim gasoline-powered EPA determined any injury from EPA’s regulate failure to engine oils do need to be listed as haz- these oils under the “listed compo- waste” ardous wastes because most of these oils are regulation. nent of the same Intervenors already regulated Under the characteristic apply stringent too a standard for the deter- Rule, component of subtitle C. Final standing. mination question The at that 21,531. further threshold is not allegation whether the regula- determined that other environmental injury they is one ultimately will adequately tions address additional risk fail, merely but whether it injury states an by posed plausible mismanagement cognizable in an III Article court. To estab- gasoline-powered engine oils. Id. With re- injury lish standing purposes, peti- oils, spect remaining to the EPA determined tioner must palpable show “a distinct and required was not because these himself; injury injury that this is caused “typically frequently” used oils are not challenged activity; and that and thus hazardous did not meet the thresh- injury apt to be remedy redressed requirement listing. old Id. the ex- To prepared give.” the court is Charles may pose “[t]hose tent oils threat Wright, Arthur R. Alan & Edward *5 Miller disposal,” agency on determined that Cooper, H. Federal Practice & Procedure they were also “addressed the current (1984). § 3531.4 at 418 Petitioners have al- regulatory framework.” Id. leged that “some of its members live com- Petitioners, the Natural subject Resources De- resulting munities to incidents Council, fense the Hazardous mismanagement HWTC, Waste Treat- oil.” used Council, ment and the Association of Petrole- F.2d at 273. To the extent that there Re-Refiners, challenge um the EPA’s no-list be regulation differences between under the They decision. base their “characteristic waste” and “listed waste” alleged noncompliance (for components EPA’s with RCRA example subtitle C agency’s listing reg- hazardous waste procedures) petitioners’ enforcement alleged ulations, 261.11(a)(1) (3). § injury arguably C.F.R. is traceable to the EPA’s —
failure to list used oils as a hazardous waste. Though ultimately See id. we determine II. DISCUSSION petitioners right that have not established a n A. EPA’s decision not to list gasoline- relief, they to that does not mean that have 4,0 powered engine oils under alleged cognizable injury sufficient to 261.11(a)(1) justiciability. cross the threshold of Petitioners’ first focuses We now turn to the merits of the pro petition. agen EPA’s failure to list used oils Petitioners maintain that the by gasoline-powered engines cy’s criterion, duced listing as haz first 261.- 11(a)(1), support straightforward ardous waste. Intervenors issued a directive to EPA, American Petroleum Institute and Edi Administrator to list these oils and that al., Institute, argue son peti Electric et that his decision not to do so must be set aside as n standing challenge, contrary tioners lack peti raise this to law. As recounted having tioners, constitutionally failed to establish a regulation requires eognizable injury. Intervenors assert that that agency's
3. EPA’sFinal Rule announced the deci- cled used oil. Id. Both the no-list determination sion to defer action on a determination management recycled and the standards for management recycled standards for and/or oils. See Final September challenged Safety-Kleen Corp. oil have been Rule, 21,524. at On (and cases) No. 92-1629 consolidated 10, 1992, separate EPA issued a de- However, (D.C.Cir.). recycled oils com- recycled termination not to list used oil as a prise part of the instant case all referenc- Fed.Reg., hazardous waste. See 57 opinion pertain only es in this "used oil" (1992). date, that On same EPA also issued disposal. used oil destined for regulations governing recy- argue ignore “shall” list used oil as To otherwise would [t]he Administrator English upon determining principles usage. that basic For a hazardous exam- ple, regulation directing “pedestrians that exhibits of the characteristics “[i]t only upon determining shall cross 261.- the street hazardous waste....” CFR 11(a)(1). light green” clearly is establishes green light prerequisite that a is a street Br. at 25. Because the EPA Petitioners’ crossing. argue But few would acknowledges gasoline-powered engine compels familiar command one to venture toxicity characteristic, often exhibit the oils signal permits. soon forward as traffic Proposed Supplemental see Notice Rule case, Similarly, presence in this of the 48,018-20, making, petition “only” listing regulation word in EPA’s indi- argue ers violated its own cates the Administrator was not re- regulations by failing gasoline-powered to list gasoline-powered quired engine to list oil as engine oils as a hazardous waste. simply hazardous waste because the might agree peti- We be inclined to found that such oils exhibit the char- interpretation above-quoted tioners’ acteristic. note, regulation, regula- for as Having caught misquoting key been tion’s use of the command “shall” would nor- issue, regulation petitioners’ reply brief mally indicate Administrator lacks “only” proper place restores the word to its discretion to decline to list a waste that regulation, argues in the but that EPA was a hazardous exhibits characteristic. Unfor- required gasoline-powered still engine to list tunately petitioners, regula- 261.11(a)(1). oil under Petitioners attack they quote regulation tion not the agency’s listing regu- construction of the officially promulgated reported lation, arguing “only” that the word cannot Regulations. regula- Code Federal That possibly be read to afford the discre- *6 provides: tion tion not to list a waste that meets one of the (a) The Administrator shall list a solid Rather, listing petitioners three criteria. only a waste as hazardous waste “only” solely claim that the word functions determining that the solid waste meets one limit the factors the Administrator can con- following of the criteria: deciding sider whether to list a hazardous waste: The Administrator must render a de- (1) any It exhibits of the characteristics “only” promulgated cision based on the crite- subpart of hazardous identified in C ria, any without reference to extraneous fac- [i.e., ignitability, corrosivity, reactivity, and tors. toxicity]. interpretation
This
suffers from the same
petitioners’
flaw as
earlier construction —it
261.11(a)(1)
added).
(emphasis
comport
English
fails to
usage.
with common
Petitioners’
that the Administrator
only
light
green” obviously
if
“Cross
is
obligated
gasoline-powered engine
to list
prohibit pedestrians
does not
from consider
upon determining
oils as a hazardous waste
(like
truck!)
oncoming
other factors
an
they
exhibit the
characteristic
Furthermore,
deciding whether
to cross.
petitioners’
thus rests on
convenient omission
petitioners’
if
regula
even
construction of the
“only”
quotation
word
their
tenable,
only
tion were
that would
establish
regulation.
agency’s listing regulation
ambig
that the
is
notes,
correctly
As EPA
the restoration of uous.
It would not establish the kind of
key
finding
inconsistency
this
word establishes that the
regulatory
of blatant
lan
prerequisite
guage
justify
rejection
one of the three conditions is a
that would
our
hazardous;
listing particular
to its
a
interpretation
regulation.
waste as
EPA’s
of its own
-
States,
finding
U.S. -,
obligate
but such a
alone does not
v.
See Stinson United
Thus,
-,
1913, 1919,
regulation’s
EPA to list the waste.
113 S.Ct.
ner that would automatic ... disposed managed.” or otherwise 40 whenever certain technical conditions are 261.11(a)(3). Rather, deciding In Congress’s delegation met. broad to C.F.R. to list (a)(3) criterion, develop EPA to criteria for used oils under the hazardous (vii) wastes, 6921(b), (x). primarily indicates that relied on factors Congress agency intended the to have sub These factors are: expertise stantial room to exercise its in de (vii) plausible types improper The man- termining appropriate grounds for list agement to which the waste could be sub- ing. Natural See Resources Coun Defense _ jected cil, 1146, Inc. v. 907 F.2d 1159 n. (x) (D.C.Cir.1990) (RCRA governmental Action taken “gives Administra agencies regulatory programs or determining tor broad discretion in based on the crite listing specific posed ria for in wastes and the health or environmental hazard wastes”). by the waste or waste constituent. 261.11(a)(3)(vii) (x). In improper
40 C.F.R.
&
evalu-
amounted to an
construction and
factors,
ating
EPA examined
oth-
these
nine
application of the
regulations.
EPA’s own
schemes,
in
er federal
each case
easily
This
dismissed.
noting
program
the effect
the dis-
Petitioners do not contend that the Adminis
Rule,
posal
of used oil. Final
trator failed to consider the relevant factors
21,528-31.
agency
concluded
in making
fact,
his no-list determination.
In
regulations
network of
could control
they
quite
opposite:
contend
plausible
mismanage-
scenario
Administrator
Therefore,
considered the relevant crite
agency
ment.
decided that
ria,
finding
many
but
“pose
used oil did not
a substantial
the factors
threat to
environment,”
supported listing,
in
balancing.
human health or the
and did
erred
his final
(a)(3). However,
require listing
under
neither
regula
subsection
RCRA nor EPA’s
21,528, 21,531.
Id. at
purports
assign any
tions
particular
weight
to the
factors listed
subsection
challenges
Petitioners
raise two
to the
(a)(3).
case,
(a)(3)
being
That
First,
the Administra
EPA’s evaluation of the
factors.
tor
emphasize
was free to
petitioners argue
deemphasize
erred
factors,
particular
relying
regulation’s
seventh
only by
and tenth
constrained
since,
petitioners’
judgment,
requirements
factors
of reasoned
decision-
important
“most
factors are the first listed.” making.
New
Reilly,
See
York v.
969 F.2d
Br.
Petitioners’
at 33. Those factors include:
1147,
(D.C.Cir.1992);
Shippers
Lo
Ac
nature, concentration, potential
for mi-
ICC,
802,
tion Committee v.
857 F.2d
gration,
degradability
persistence,
(D.C.Cir.1988),
denied,
cert.
490 U.S.
toxic
constituents.
261.-
(1989).
109 S.Ct.
1073
petitioners
by
a
forum
present
governmental
suitable
tion taken
agencies or
Rule,
challenge.
regulatory programs
for their
EPA’s TC
based on the health or
required
adopted
posed by
the TCLP as the
test for
environmental hazard
the waste or
261.11(a)(3)(x).
identifying
§
the toxic characteristics of all sol-
constituent.”
Id.
But,
wastes,
oil,
including
considering
impact
the
id
used
became final on
of other envi-
29,
regulations
ronmental
on
March
1990. See 55
the treatment of
oil,
(1990).
petitioners charge
7006(a),
that EPA in
Under RCRA section
the
ef-
fect relied on a new
petitioners
judicial
factor —“whether
time for
to seek
review of
pose
oil will
properly
hazard when
ninety days
man-
expired
rule
later.
42
aged in
6976(a)(1) (1988)
accordance with other Federal
laws.”
(any petition
U.S.C.
Petitioners’ Br. at 36. Because RCRA
regulation
promulgated
review of a
under
regulations
require
agency
regu-
to
days
RCRA must be filed within 90
of EPA’s
may
late hazardous
action).
pose
waste that
a sub-
Having
timely
final
to
failed
raise
stantial threat
improperly
“when
... man-
challenge to EPA’s chosen method for as-
aged,”
6903;
42
40 C.F.R.
261.-
sessing
toxicity
oily
characteristic
11(a)(3)
added),
(emphasis
petitioners charge
wastes,5 petitioners cannot now raise a collat-
that EPA
regulations
construed its
in a man-
challenge to that rule in the context of
eral
ner
inconsistent with its
and the
litigation.6
petition-
this
To the extent that
governing statute.
argument
simply
ers’
can be read as
chal-
lenging
propriety
of the Administrator’s
doWe
not reach the merits of this chal-
properly promulgated, although
reliance on a
lenge
petitioners
because
failed to raise this
perhaps imperfect, agency
making
rule
his
question
statutory
con-
determination,
no-listing
struction
agency during
before the
the notice
agency
without merit. An
seldom acts arbi-
period. They
and comment
have therefore
trarily
conformity
when it acts in
with its
opportunity
waived their
press
argu-
to
unchallenged rules.
EPA,
ment in court. See Ohio v.
997 F.2d
1520,
(D.C.Cir.1993);
1528
Linemaster
finally charge
Petitioners
that even
EPA,
Corp.
1299,
Switch
938 F.2d
1308
permissible
agency
if it was
rely
for the
to
on
(D.C.Cir.1991).
(vii)
(x) making
no-listing
factors
determination,
application
the EPA’s
Supplemental
of those
In its 1991
Notice
Pro-
factors in this case must
posed Rulemaking,
be set aside as
EPA specifically stated
agency’s
inconsistent with RCRA and
contemplating
that it was
listing used oils
(vii)
regulations.
agency
Factor
directs
relying
regula-
instead
other federal
plausible types
to
improper
prevent any plausible
“[t]he
consider
tions to
harm from
48,021.
to which the
disposal.
waste could be
subjected.”
261.11(a)(3)(vii). Nevertheless,
petitioners
argue
did not
dur-
(x) requires
Factor
that EPA consider
rulemaking
“[a]c-
that EPA’s reliance on
validity
validity
5. The
Although
TCLP as a method for identi-
of the TCLP.
EPA did mention
fying
wastes,
that,
the hazardous
rules,
characteristics of solid
in accordance with its
the TCLP
oil,
including
timely challenged
identify
would be relied
grounds by
industry
on other
numerous
and en-
Inst.,
oil,
agency
characteristic of used
neither so
groups.
vironmental
See Edison Elec.
responded
addressing
licited nor
to comments
F.3d at 438.
validity
applied
of the TCLP as
to used oil.
Comm’n,
Regulatory
See Public
v. Nuclear
Citizen
refuge
''reopen-
6. Nor can
seek
147,
(D.C.Cir.) ("If
proposing
901 F.2d
recently
er doctrine" most
articulated in Edison
agency
language
rule
uses
that can reason
EPA,
Electric Institute v.
996 F.2d
331-32
ably be read as an invitation to comment on
(D.C.Cir.1993).
recognizes
That doctrine
seeking judicial
"
portions
agency
explicitly propose
does not
period
'the
review
change,
responding
or if in
to comments the
question
made to run anew when the
language
uses
that shows that it did in
promulgation
opportu-
some new
creates
"
issue,
fact reconsider an
a renewed
nity
objection.’
for renewed comment and
Id.
allowed."),
underlying
policy
(quoting
rule or
will be
Ohio v.
denied,
(D.C.Cir.1988)). However,
cert.
498 U.S.
record in
111 S.Ct.
nothing
suggest
(1990).
this case reveals
that EPA
L.Ed.2d 546
sought
rulemaking
reopen
in its
debate on the
*11
III. CONCLUSION
regulations was forbidden
other federal
that
statutory
regulatory command
and
Nothing
listing regula-
in
or EPA’s
RCRA
pose
that
a substantial
EPA list substances
required
tions
EPA to list used oils
managed.”
“improperly
Nor
threat when
gasoline-powered engines as a hazardous
party make this claim. See
did
merely
they
the toxici-
because
exhibit
(court
Ohio,
may excuse one
arguments before administrative I. BACKGROUND court, respect agencies’ proper and the 19,1980, May On the course announc- requires framework role Chevron regulatory identifying criteria for particularly the court be careful to ensure fisting specific hazardous characteristics and challenges agency’s interpretation to an hazardous, particular wastes as governing of its statute are first raised postponed any fisting decision on used oil Linemaster, forum. administrative 33,- until some time that fall. 45 petition at 1308-09. We therefore hold 084, 33,086, 33,118. November of argument regarding cor ers waived their year, fisting again. decision was deferred phrase “improper rect construction 74,884, 74,890. Responding management” inaction, as used RCRA and the Congress passed the Used Oil agency’s implementing regulations. Recycling Act of sec. Pub.L. No. 96- argument, suggested petitioners' peti- 7. At oral counsel with the full text of comments. After comments, however, implied tioners' comments had at least examining these we are still proposal rely regula- on other federal any place unable to discern in which agency's tions would be inconsistent with the fairly could be said to raised this issue of have duty "improper management” consider statutory construction. supply court used oil. We asked counsel to *12 (uncodified), (D.C.Cir.1988) (“HWTC”) 463, 2055, 94 2058 which (discussing Stat. history required legislation). the EPA to “make a determination of used oil applicability oil as to the to used of the 29,1985, On in compliance November near relating criteria and to char- congressional with mandate, the the EPA of acteristics hazardous wastes” and to sub- proposed to list used as a oil hazardous waste Congress report “together mit to with a in 40 Fed.Reg. 49,258, 261.31. 50 detailed statement of the data and other 49,270. As the decision, factual basis for its information which the determination is the invoked based.” background the oil used document [which] January, report Congress, In its 1981 to provides a summary of approximately 80 EPA indicated its to [the] intention list major mismanagement and incidents both used oil oil and unused waste as implications operations cost cleanup of under of hazardous section 3001 RCRA ($10,000 site). $5,150,000per The mis- presence based on the of number of management issue is not confined to on- {e.g., in toxicants crude refined oil ben- oil, site of used as evidenced zene, naphthalene, phenols), and as well as (70) seventy the fact that of these inci- presence of contaminants in used oil as generation dents occurred off site. lead, chromium, {e.g., result use and The media affected include surface water cadmium). addition, report In cited (35 sites), (24 ground sites), water drinking environmental and human health (8 (17 sites), (25 sites), water air and soil posed by these and un- threats used oils sites). oils, including potential used waste Treatment, storage, disposal and of used ground rendering non-po- threat of water oils tank and container storage facilities through table contamination. (25 sites), (36 impoundments sites), surface 20, 1992). Fed.Reg. 21,524, 57 (May (35 improper disposal and other facilities See U.S. ENVIRONMENTAL PROTECTION AGEN- (7 sites), sites), burning operations and use Listing CY, Waste Oil a Hazardous (3 sites) suppressant oil as a dust (1981),reprint- Congress Report Waste: have pollution ground resulted (“J.A.”) Appendix ed in Joint As then- 103. lead, surface with organ- water chlorinated Douglas M. Administrator Costle wrote his ics, organics or aromatic from these accompanying Congress, letter to in- “[t]he wastes. presented formation here will used later summary, Agency has determined year support proposed listing typically oil toxic con- contains these waste oils as hazardous J.A. wastes.” stituents concentrations that are of con- cern, mobile, these constituents are years later, Three the EPA still had persistent, bioaecumulative, capa- and and matter, leading Congress moved on the migration ble of in hazardous concentra- put prod” adopt a “further to the and, tions, therefore, that these wastes are section 241 of the Hazardous and Solid (indeed, capable causing repeatedly have 1984, Waste Amendments of No. Pub.L. 98- caused) mismanaged. substantial harm if (codified 616, 3221, 98 42 Stat. 3258 at U.S.C. Consequently Agency proposing is H.R.Rep. 6935). 98-198, Cong., No. 98th add oil to the lists of hazardous 1, Sess., pt. (1983), 1st reprinted at 64 wastes. 5576, leg 1984 U.S.C.C.A.N. 5623. The new EPA, provided “propose 49,267. islation EPA shall Id. at subse- identify quently whether to list or change regard- used automobile underwent a of heart (in and truck ing recycled crankcase oil as hazardous waste” oil contradistinction to used than later November shall destined for which issue here) make a final decision the matter no later issued supplemental sug- notices year. following than gesting special management standards and a 6935(b). Hazardous recycled Waste Treatment no-list oil. decision Cf. (Mar. 1986). Council 271-72 expiration respect to the characteristic.”
Shortly
one
before
48,006.
study
year
action
on Id. at
The new
broke down
deadline
final
oil, Congress passed the
categories,
used oil into several
one which
(ie.,
Superfund
gasoline-powered engines
Amendments
Reauthorization was oils from
99^99, 100
crankcase,
Pub.L. No.
Stat.
Act of
gasoline-powered ma-
automotive
(codified
aircraft).
sections
craft,
scattered
piston-engine
rine
See
Code),
Applications
gave
United States
InteRnational
CORPO-
Soience
*13
authority
regulate recycled oil
to
additional
RATION,Used Oil Characterization
Sam-
The EPA’s
listing it as hazardous.
Analysis
without
(“SAIC
pling
Program
(1991)
AND
recycled
citing
did
list
oil
as
final decision
not
contract),
report”) (prepared
EPA
for
under
principal
stigmatie
reason that the
effects
its
reprinted
218. The EPA
in J.A.
found oil
listing
discourage recycling.
such a
would
of
engines
gasoline-powered
from
to contain
(Nov.
1986).1
19,
Fed.Reg.
The
51
by its
toxicants detectable
toxic characteris-
deferred,
again,
listing
once
the
of
EPA also
(“TCLP”),
tics
as well as other toxicants
test
disposal, apparently
for
on
used oil destined
not
that test.
detectable
a
would have
the
that such
supplemental
presented
notice
three
The
spillover stigma
recycling
on
used
a
effect
oil.
(1)
options:
list all used oils as hazardous
41,903.
as to
Id. at
The
decision
(2)
waste,
list
used oils that
as hazardous
now scheduled for
1988.”- Id.
“[m]id
oil was
41,904.
typically
frequently
and
exhibit toxic constit-
at
concern,
at levels
as
uents
such
passed
any decision. In
Mid-1988
without
(3)
engines,
gasoline-powered
list
year,
panel
of this
October of
court
rely mainly
as hazardous and
on
oils
recy-
the
decision not to list
held that
recycled
pro-
for
oil
standards
stigma
oil
on
concerns was con-
cled
based
mulgated
3014(a),
under
42
RCRA section
trary
Act
not per-
law because the
“does
to
regula-
as well
the RCRA
stigmatie
Agency
mit
consider
the
to
these
tory
triggered
scheme that would
when
deciding
list
consequences
whether to
re-
whether,
oil,
batch of used
destined for
HWTC,
cycled
as a
waste.”
oil
hazardous
disposal
recycling, individually
exhibits
271.
861
at
The court held
F.2d
toxic or other hazardous characteristics. 56
obligated
to
“whether
was
reconsider
48,019-21.
Fed.Reg.
“recog-
notice
The
any recycled oils meet the technical criteria
option
completely
nizes
[third]
that this
is not
added).
listing.”
(emphasis
Id.
comprehensive
the EPA
because
lacks the
March,
In
the EPA had still not
when
authority
Federally-enforceable
impose
to
disposal,
acted on used
destined for
regulation
opposed
on
of [as
to
filed suit in federal court.
NRDC
NRDC
recycling of] nonhazardous used oil. There-
(D.D.C.
90-0694,
while there
changes
have been some
“over
decade,”
the last
phase-
such as the “lead
investigation
An
Superfund
of 25
sites
in gasoline,
down
... Evergreen’s most re-
mismanagement
that involved the
of used
...,
EPA’s,
cent test data
like the
continue
oil found used oil contamination of surface
significant
to show
levels of
[in
lead
used
waters, soils,
ground
and
surrounding
and
96).
Id. at
(Supp.A.
oil].”
And although
crops.
lands and
In several cases wildlife
the EPA had
types
asserted that “the
of
damage or wildlife
has
docu-
death
been
mismanagement historically associated with
Further,
damage
mented.
over 60
inci-
longer
plausible
used oil
subject
if
dent summaries indicate contamination of
management
Federal enforcement [of oil
water,
surface
in-
while over 30 incidents
standards],”
Fed.Reg.
(emphasis
contamination,
volve soil
and a few contain
added),
out,
pointed
as one eommenter
“[t]his
of air
evidence
contamination.
statement assumes that EPA will devote sub-
many
... EPA
poten-
notes that
stantial
enforcing
resources to
new
tial risks
human
and
health
the environ-
management
“[n]o
standards” and that
such
oil,
mismanagement
ment
of used
commitment
of resources has been made
above,
present regard-
as documented
are
102).
agency.”
(Supp.A.
Id. at 32
type
less of the
of
oil that
used
is released
environment,
particularly
the con-
Nonetheless,
May 20, 1992,
on
ground
of
tamination
water and effects on issued its final
not
used
decision
to list
oil as
plant
animal
and
life.
change
hazardous waste. The EPA
not
did
48,033-35.
Id. at
report
oil,
The
position
toxicity
but,
SAIC
conclud-
on the
of used
(vii)
ed:
preponderance
damage
“Based on the
relying
of
(“plausible types
factors
(“actions
involving
quan-
(x)
incidents
improper
used oil and on
management”)
tity of
assessing
scientific literature
governmental
the ef-
taken
agencies
fects,
presents
EPA believes
regulatory
that used oil
programs”) of the multi-factor
significant environmental
261.11(a)(3),
hazard.” SAIC re-
test
in 40 C.F.R.
concluded
(J.A. 277).
port
words,
at 1
In other
that “the current
structure con-
existing regulatory
doing
was
trolling
management
scheme
not
the-
of used oil destined
job
protecting
disposal
provides adequate
environment from the
controls so
dangers of used oil disposal.
pose
used oil will
a substantial
brief,
was wedded to the
or the environment.”
threat to human health
second, related attack which was
NRDC’s
21,524, 21,528. The EPA ex-
regulatory inteipretation
phrased
terms of
plained:
(vii)
(x)
factors
of 40 C.F.R.
261.-
assessing
potential
extent and
After
11(a)(3), i.e.,
the NRDC’s
regulatory programs
current
success of
improper manage-
failed
to consider
oil,
disposal
on the
of used
and their effect
presumed
wrongly
oil and
ment
used
existing
net-
Agency
believes
always
be conduct-
provides protection
regulations
work of
compliance
every regulatory
stric-
ed
mismanagement
disposal
from plausible
The
thrust of
first
ture.
wider
NRDC’s
£he
scenarios,
below.
as discussed
challenge,
lost on the EPA.
below,” however, consisted
“discuss[ion]
brief,
argued
In its
responding
solely
laundry
regulations.
current
list of
existing
impact
it
“considered
21,528-31.
The record
See
regulatory programs
manage-
federal
any party
pointed
far as
has
reflected —so
oil,”
ment
part
attempt on the EPA’s
out—no further
exhibiting a hazardous characteristic “was
potential
success”
to “assess the extent
already subject
regulation
to RCRA”
preventing
or clean-
existing
by used
ing up pollution caused
oil.
oils,
remaining
respect to
[w]ith
which do not exhibit the
character-
Appeal
II. The Instant
*15
istic,
variety
[a]gency
the
concluded that
statutory
to
In addition
the
construction
plausible
of federal
control the
(with
by
majority
I
types
improper management
issue discussed
the
which
of
to which
subjected
oil
to a sufficient
generally agree),
addi-
could
the NRDC makes two
extent so that
there is no substantial
first,
challenges
the
appeal:
tional
on
that
to
threat
human health or the environment
adequate support, ignored the
without
improper management
the
mismanage-
that
record
demonstrates
which
oil.
poses
widespread
ment
considerable
is
(citations
environment;
second,
Respondent
Brief for
at 12
omit-
danger
that
to the
ted).
agency, according
to the EPA’s
disregarded
unjustifiably
plausible
brief,
regulations’]
[the
“relied on
cumulative
mismanagement
presuming
scenarios
impact,” id.
that
at
“considered scenarios
compliance
every reg-
with
generators’
unregulated,”
were
id.
and “concluded
ulatory
panel
on
books. The
constraint
the
regulations controlling
existing
that
federal
resting
appellate
majority,
principles
management
the
of used oil
exhaustion,
briefing and administrative
refus-
were sufficient to avoid
substantial risk
challenge,
the
of either
es
consider
merits
improper management
the
used oil
holding
first
was
NRDC’s
could cause harms to human health or the
properly
appeal
not
raised on
and that
its
environment,”
support
17.
id. at
In
of its
I
properly
second
not
raised below.
was
conclusion,
presented
the EPA then
the same
disagree.
roadmap
landscape
regulatory
upon
brief,
challenged
In
opening
its
the NRDC
rulemaking.
in
it had relied
Id. at
determination that other environ-
EPA’s
only
It
19-21.
also mustered the
“factual”
any plausible
mental
controlled
mis-
statutes
support
ignore
ever noted for its decision
“Each
the other
scenarios.
scenarios,
mismanagement
the documented
in
relied on
EPA
environmental statutes
mismanagement
arguing “that the
incidents
only
challenged
its
determination address
in the 1991 Notice
occurred
described
management.”
aspects
many
narrow
prior
regulations.”
of these
Id.
(citation omitted).
by reiterating
Brief
21 n. 16. The EPA ended
for Petitioners at
information,
evaluating all
NRDC,
available
“[a]fter
EPA’s
in-
According to
decision
rejected
option
EPA
list used oil as
[the]
[to
explicably ignores
record below
“[t]he
hazardous].” Id. at
instances of en-
[which] documents countless
damage
mismanagement
NRDC,
believe,
point,
due to
I
vironmental
At this
was
sure,
opening
reply
Id.
its
brief to elaborate
of used oil.”
To be
entitled
contrast,
challenge
ig-
had
original
reaching
improvident
that the EPA
we risk
its
by refusing
of mis-
nored scores of documented instances
outcome
to review the factual
thereof)
(or
management.
basis
lack
Its actual retort
that indeed
for the EPA’s decision.
support-
was no “available” information
there
This is not a case
where the
lacked
current
ing the EPA’s conclusion
notice of the
NRDC’s
the record
protect-
regulatory
successfully
scheme
supporting
evidence
a no-list decision.
plausible
controlling
the environment and
addition to the fact that the
chal-
NRDC’s
mismanagement
scenarios of
was a reason-
lenge
sufficiency
to the
appeared
record
able counter to the EPA’s assertion that
brief,
opening
already
its
had abun-
existing regulations
adequate to
were
petitioners’
dant notice of
position that no
thrust,
repeated
The NRDC
task.
initial
such evidence existed as a
result
extensive
contrary,
arguing that
the adminis-
“[t]o
during
rulemaking. During
comments
high
reports
is
trative record
stacked
rulemaking,
petitioners flat out chal-
documenting
improper management
lenged
absolutely
that the EPA had
rec-
no
caused,
pose,
has
and continues
ord
supporting
evidence
a no-list decision.
Reply
environmental hazards.”
substantial
example,
discussing
For
mismanage-
after
(citations
for Petitioners at 11-12
omit-
Brief
scenarios,
ment
Safety-Kleen
Corpora-
ted).
NRDC,
According
reported
to the
tion maintained
Agency’s previous
“[t]he
damage
“as
incidents were
recent as the
support
and new data
not
option
do
contain,”
administrative record could
id. at
“[tjhere
not
used oil” and that
is
12, and the EPA itself had found earlier that
Option
factual or
basis for
Three.”
mismanagement
despite existing
occurred
(Nov.
Corp.
of Safety-Kleen
Comments
at 9
laws, id. at 13. The NRDC concluded that
6, 1991),
reprinted
Supp.A.
68. The
report
one
the record —not
“[t]here
Evergreen
Company similarly
Oil
argued
support
iota of
one
evidence—to
con-
simply
that “[t]he factual record
does
adequately
that current
clusion
laws
control
support
no or limited
decision.”
*16
mismanagement.”
Id. at 14.
Oil,
Evergreen
Comments of
Inc. at 29
99).
(Supp.A.
Contrary
majority,
I do
to
not believe
prudential
To hide behind our
rule
not
of
appropriate
invoking
is an
instance for
recognizing arguments
for
first
raised
not
prudential
our
doctrine that we will
con
brief, then,
reply
in
sidesteps
time
an issue
arguments
sider
made for the first time in a
adequately
dialogue
that was
raised in the
Majority
reply
Opinion (“Maj.
brief. See
respondents
between
and
in this
Op.”)
1071-72 n. 4. The basis for that rule
am
ease.2 I
“confirmed in this belief
is,
course,
allowing
arguments
of
that
novel
fact
[EPA]
that the
itself
to
never claimed
“manifestly
to be introduced so late would be
deprived
have been
of reasonable
of
notice”
who,
rules,
appellee
to
unfair
under our
inadequate
the NRDC’s
evidence claim.
opportunity
response,”
has
for a written
Hydro-Elec.
Bangor
Energy
Co. v. Federal
possibility
improvi
and would “risk the
‘of an
*
”
Comm’n,
Regulatory
n.
F.2d
opinion.’
dent
ill-advised
Herbert v. Na
(D.C.Cir.1991).3
Sciences,
Academy
tional
(D.C.Cir.1992)
because,
(quoting
point
v.
important
McBride Mer
This
is
Ias
read
Pharmaceuticals,
Inc.,
record,
Dow
challenge
rell
the NRDC’s
to record
(D.C.Cir.1986)). Here,
F.2d
in
for a
prevails
evidence
no-list decision
2.
appeal, may
Given
reasonable minds
differ on how
contents
briefs on
we
also con-
clearly
opening
challenged
the NRDC's
brief
points
sider
not raised in the briefs or in oral
decision,
evidentiary support for
no-list
we
argument.
willingness
Our
do so
on a
to
rests
supplemental briefing
well
could
have ordered
to
balancing
judicial
of considerations of
orderli-
provide
opportunity
the EPA with an additional
efficiency against
ness and
the need
for
important
consequential
to address this
is-
possible
greatest
accuracy
judicial
decision-
sue.
making.
particular
The latter
is of
factor
weight when the decision affects the broad
said,
haveWe
even
public interest.
[Nlotwithstanding
requirements
of Federal
Appellate
regarding
Rule of
Procedure
believe,
effort,
has,
pro-
I
recently
EPA
failed
Only
we held that the
merits.
sup
evidentiary
adequate
cover for its final re-
presume without
vide
factual
not
could
managed
would be
I
remand the case to
port that hazardous waste
treat. would therefore
manner. Edison
particular,
explanation
undesirable
EPA for a
of its deci-
in a
fuller
(D.C.Cir.1998).
EPA,
whether, empirically, regulatory the current mismanagement sufficiently renders
scheme justify a no-list deci
“implausible” so as to far, simply out the it has sketched sion. So DIRECTOR, OF WORKERS’ OFFICE theory, landscape abstract —the PROGRAMS, United COMPENSATION in no practice. It has Avise met Petitioner, Department Labor, States challenge mismanagement sce NRDC’s regu to occur even -with the narios continue DECORATING; JAFFE NEW YORK place. I remand for a fuller lations Indemnity Compa Hartford Accident & explanation and discussion Nancy ny; King, Philip A. Widow rely upon EPA to permitting the before Respondents. King, unnecess to demonstrate factor ary.4 No. 93-1085. Appeals, United States Court
III. Conclusion *17 District of Columbia Circuit. years the course of last fifteen Over it repeatedly has announced Argued April un- seek hazardous would 10, 1994. Decided June began time it its ven- the RCRA. Each der arguing in favor ture Arith host of reasons list, and each time it ended
of a decision to In the latest rulemaking in Arithdrawal. States, regulations expressly permits the EPA v. Federal United Inc. Consumers Union of Comm’n, (D.C.Cir.1975) schemes, Power to consider other (footnotes omitted). 261.11(a)(3)(x), "plausible” scenarios l(a)(3)(vii), mismanagement, de- at 261.1 id. urges NRDC that the EPA 4. The also ciding any given as hazard- whether to list waste ap- presume generators' compliance with effectively excising two We these ous. regulations, posit plicable must but indeed require regulations were we to factors from the being ignored. majori- are other always posit complete ineffec- ty rejects of this consideration regulatory system. every tiveness of properly Cf. it below. See basis that was not raised 538-39, Menasche, States v. 348 U.S. United Maj.Op. at Because I would remand 1073-1074. 513, 519-20, (1955) (apply- text, L.Ed. 75 S.Ct. I grounds the case discussed give statutory ing principle construction "to regulatory interpre- find no reason to discuss effect, possible, every clause of a only if and word I that this claim detail. note tation omitted)). (internal language quotes appears and citation counter statute” claim to run