*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. 123 L.Ed.2d 598 (1993) “only” (agency’s interpretation reg inclusion of the modifier dráins the of its own compulsory given word “shall” controlling weight of its connotation. ulation unless (a)(3) erroneous”); tic, “plainly requires Hazardous Waste while subsection that “a Reilly, (a)(3) F.2d Treatment Council waste shall be listed” if it satisfies the (court (D.C.Cir.1991) accept agen- Rule, must balancing test. Final added). cy’s regulation its own (emphasis construction of unless Because both the (a)(1) (a)(3) “plainly wrong”). it is prefaced by criteria are requirement common the “Administra- suggest, do not mean to We only upon tor shall list a waste ... determin- may rely on considerations outside its ing” that it meets one of the promulgated listing determining criteria in criteria, 261.11, argue regulate whether to used oil as a hazardous agency by that the giving seemingly erred expressly waste. Our decision HWTC for- contradictory interpretations to these two basing listing bade EPA from its used oil listing criteria. urge Petitioners the court to determinations on such extraneous factors. alleged by correct holding error However, rely pres- did not HWTC regulation’s use of the command “shall” “only” listing in EPA’s ence the word plainly compels the Administrator list a Rather, regulation to reach that result. waste as hazardous if either criterion is met. HWTC, held that EPA make its we must solely listing decisions based on its technical above, For the reasons discussed we criteria because Hazardous and Solid reject petitioners’ regula contention that the Waste Amendments “shall,” by tions’ use of the word as modified 6935(b), expressly directed to make “only,” required give word EPA to a listing its determinations “under section mandatory listing regula construction to its implementing regula- 6921” of and its RCRA tion. Nor do we believe that HWTC, tions. 861 F.2d at unreasonably adopting acted what at first interpretation listing regula- of its appear contradictory blush to be construc produce contrary tion does not result. (a)(1) (a)(3) tions of the criteria. As EPA required statute to base determinations, listing evidenced listing exclusively decisions techni- on its unequivocally adopted EPA has interpre promulgated cal criteria under RCRA tation of 261.11 that reserves to the confines, section 6921. Within those howev- considerable in determining discretion when er, regulation’s inclusion of the word employ any of its three criteria to list “only” grante the Administrator discretion to particular waste as hazardous. See Final base decision on of the three *7 (Identification Listing By Rule of Coke grounds listing regulation. in set forth Wastes), 37,284, 37,288 Products Thus, case, (a)(1) in this subsection would (1992). However, why we see reason permitted have the Administrator to list used agency should not be able to exercise this gasoline-powered engines from as a haz- discretion in wholesale order to limit its ground ardous waste on the sole that these any listing discretion under or all of its crite toxicity oils exhibit the characteristic. How- is, ria —that categorical decide that it .will ever, nothing regulation compelled in the ly every particular list waste that meets a listing Administrator to make his determina- particularly criterion. Such a choice seems (a)(1). Rather, tion under subsection respect reasonable with the subsection to. listing Administrator free to make his (a)(3) criterion, balancing whose multi-factor balancing determination under the test set great test still leaves a deal of room for the (a)(3), forth in subsection in as he did agency expertise. exercise of See 40 C.F.R. case. 261.11(a)(3) § (setting unweight forth eleven Petitioners make one further ed factors for the Administrator to consider respect interpretation determinations, with making listing EPA’s the last of § worthy word “shall” in 261.11 that is of our which allows the Administrator to consider paraphrasing regulations, mention. appropri other factors as “[s]uch ate”). the EPA’s Final Rule stated subsection Because EPA’s construc we believe (a)(1) listing regulation “allows the Administrator to list a tion of its was reasonable displays toxicity waste” that characteris- af- consistent with the broad discretion Furthermore, regulatory language, by the we see no EPA’s decision not to list forded agency’s decision to list every reason to disturb waste that exhibits a hazardous charac (a)(3) any balancing waste that fails the test teristic is consistent with the two-track waste reserving to while itself the discretion not designed by Congress. scheme every waste that meets the conditions for list repeatedly recognized have We RCRA (a)(1). listing under subsection identify directs EPA to hazardous wastes separate ways: by identifying two first cer course, Of however reasonable tain characteristics that render a solid waste interpretation regulations, agency’s of its we hazardous, by listing specific and second sol give regulations they those if must not effect are, speak, per id wastes that “so to se Thus, governing conflict with the statute. if hazardous.” Edison Elec. Inst. v. petitioners could re establish RCRA (D.C.Cir.1993); F.3d see also Amer quires every the EPA to list Inst., ican Petroleum 906 F.2d at 733. Both characteristic, exhibits a hazardous we would “characteristic wastes” and “listed wastes” agency’s have to strike down the discretion subject rigorous disposal require are to the ary regulations as inconsistent represent ments of subtitle C and distinct the statute. regulation. position, methods of Petitioners’ try to Petitioners find such statuto require every EPA to list ry requirements command RCRA’s waste that exhibits a hazardous characteris develop the Administrator “shall ... tic. The effect would be to reduce the char promulgate ... criteria hazardous “step acteristic scheme to a mere 6921(a) waste,” (emphasis add pingstone” listing process. We there ed), promulgate regulations “shall fore agen hold that neither RCRA nor the listing particular hazardous wastes” which cy’s regulations required EPA to list used oil promulgated “shall be based on the criteria gasoline-powered engines on the sole 6921(b) 6921(a)],” (emphasis under id. [§ ground they exhibit the charac added). argue statutory Petitioners that this teristic. language grants EPA discretion to establish listing, imposes the technical criteria for but mandatory duty on the Administrator to any B. EPA’s decision not to list meeting list all wastes those criteria once the 261.11(a)(3) oils under Yet, place. are to state that argue misap- Petitioners next that EPA requires listing reg RCRA to establish plied regulations by declining its own to list comply begs ulations and then with them 261.11(a)(3). used oils under 40 C.F.R. question requires whether the statute This section authorizes the to list a listing regulations any particular con have if, substance as a hazardous waste after con- anywhere tent. And we cannot find sidering factors, set of eleven Congress specifically RCRA that directed capable determines that the substance “is EPA promulgate its criteria in a man *8 posing improperly a substantial hazard when trigger listing

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. 104 L.Ed.2d 986 ll(a)(3)(i)-(vi). Petitioners assert that these offering opinion Other than their important” undisputedly “most sup- factors (a)(3) that some factors listed in subsection ported listing used oil aas hazardous waste. important” However, are “more than those relied “[d]espite overwhelming Administrator, by the weight petitioners prop supporting of technical factors have oils,” erly only presumptive listing arguments raised two additional certain used (vii) (x) negating remotely read factors as touch on the reasonableness of This, listing. petitioners argue, the need for decisionmaking process.4 First, peti- brief, reply petitioners reply manifestly appellee their for the first time would be unfair under, charge presented who, rules, that the facts in the respondent] administra- [or our has no support tive record are insufficient to the Admin- opportunity response.”); for a written Corson & existing NLRB, istrator’s conclusion that the network of Gruman Co. v. 50 n. 4 adequately environmental can con- (D.C.Cir.1990) ("We require petitioners ap- Reply trol the of used oil. See Br. at 11- pellants arguments to raise all of their late-breaking argu- 14. Petitioners buttress this opening prevent 'sandbagging' appel- brief to ment with numerous cites from the administra- respondents provide opposing lees and and to that, view, petitioners' support tive record respond.”). counsel the chance improper management their conclusion that Wald, Judge dissenting opinion whose takes us used oil continues to cause environmental dam- restraint, job to task for our does an admirable age, spite of the existence of other federal piecing together snippets petitioners' open- However, regulations. petitioners Id. because ing brief that make it look as if had reply waited until the brief to raise this substan- indeed their substantial evidence chal- raised challenge, tial evidence the Administrator was However, lenge in that document. the whole given respond, no chance to either discount- Judge properly two sentences Wald claims by petitioners pointing the evidence cited presented appeal, this issue for see Dissent at supporting the court to record evidence the Ad- explicitly only before, explanatory were added ministrator’s conclusion. "We have said *9 support petitioners’ legal argument again, for true say ordinarily and we that we will not —that agency's interpretation regulation, the of its own arguments consider raised the for first time in a l(a)(3)(vii) (x), brief,” FERC, reply 40 C.F.R. 261.1 was incon- Pennsylvania Elec. Co. v. (D.C.Cir.1993), agency's regulations. F.3d sistent RCRA the and we see no compelling petitioners’ depart See at 1073. The section of reason to from that here. rule infra Consequently, opening containing petitioners’ these sentences was we will not entertain brief challenge. Academy captioned See also Herbert v. National as follows: "EPA Misconstrued and Sciences, (D.C.Cir.1992) Incorrectly Remaining Applied [Regula- Two ("To tory] consider an for the first time in Factors in a That Conflicts Manner With arbitrarily that EPA acted Petitioners next contend that tioners assert arbitrarily relying existing Administrator acted on relying on the network of federal component the characteristic waste of subti disposal regulations proper to ensure the regulate many tle C to used oils because the other stat- used oil because no environmental generators that test must use to evalu disposal effectively regulate can as ute samples toxicity, ate their waste for the tox expansive, “cradle-to-grave” haz- subtitle C’s icity leaching procedure characteristic disposal ar- ardous waste mechanism. This (“TCLP”), is not well suited to the task of by gument, is foreclosed the EPA’s identifying oily toxic characteristics of listing criteria themselves. EPA’s support proposition, substances. In of this validity regulation, petitioners of which petitioners cite several instances in which challenge, expressly requires do not has, contexts, recognized EPA in other agency to decide whether substance should applying oily difficulties the TCLP to listed as a hazardous waste consider- See, 46,354, 46,371 e.g., Fed.Reg. wastes. “[ajction ing, among things, other taken (TCLP (1990) “tends to underestimate the governmental agencies regulatory other leaehability of hazardous constituents from any programs” posed by to control hazard wastes”); 11,798, 11,851 oily 261.11(a)(3)(x). the substance. (1990) (“It particularly predict difficult to accept petitioners’ proposition EPA To that oily the behavior of wastes in the TCLP may rationally rely regu- on other federal test.”); Applications see also Science Inter latory programs compre- because none are as Corp., national Used Oil Characterization hensive as subtitle C would be to drain this Sam/pling Analysis Program (Aug. rely of all EPA factor content: could never 1991) contractor) (report prepared by EPA on other environmental to control (indicating clogging during that TCLP “in potentially hazardous substance because no potential troduced measurement errors” into regulation environmental can match study EPA’s commissioned of used oil toxici Furthermore, might of subtitle C. for ty). Petitioners contend that the Adminis majority of used oils at issue this trator’s reliance on the characteristic waste litigation, explicitly relied on RCRA’s component of RCRA was therefore unreason regulation govern proper C subtitle their imperfect able that use of the TCLP 21,528. disposal. See 57 Al- underregulation lead to the of hazardous petitioners prefer though would to have these used oils. regulated used oils as “listed” rather than “characteristic” waster the fact remains that To petitioners’ the extent that ar types subject gument both of wastes are to the de- validity sounds an attack on the itself, manding requirements petition of subtitle C. the TCLP this for review does circuit, Any precedents require Statute.” Petitioners' Br. at 35. fair read- In this our petitioners section demonstrates that petitioners lay arguments all their on the table in rely intended to attack EPA's determination to opening opponents their briefs so that their are ground other environmental statutes not on the by surprise. rightly not taken While the dissent agency's decision lacked sufficient factu- points exceptions we out that sometimes make record, support ground al but on the rule, exceptions properly granted such are “plain language purpose [of RCRA and arguments only questioning juris- the court's agency's regulation] forecloses EPA from (which time) can be diction raised at concluding any plausible mismanagement injustice" might where a "manifest result from used oil will not occur.” Petitioners’ Br. at 39 argument, our failure to reach an such as under added). (emphasis reading argument, "plain analysis our error” in criminal cases. See quite justified taking have been Herbert, adopt analysis 974 F.2d at 196. To phrases just petitioners to be what intended them suggested by the dissent would be to create a additional, “policy-type" why reasons be— what, minds, exception judges' new to the accept petitioners' statutory court should “really important perhaps look like issues” or argument. construction These scat- "really good arguments” even raised for the first assertions, tered buried in the middle of such a reply. Believing just time in that these are argument, fairly text-centered would not have arguments respondents sorts of for which need planning alerted the were prepared, open excep- sufficiency to be we decline to a new an attack on the factual of the admin- istrative record. tion.

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 997 F.2d at 1529 ty eligible characteristic and were thus for in party’s 261.11(a)(1). raise an issue administra- failure to listing under 40 party pressed and forum where another agency tive was free instead to evaluate all used issue). balancing forth in identical oils under the test set agency in fact considered 261.11(a)(3), it did in this case. The as they deny that failed to Petitioners do agency’s of used oil under subsec- evaluation management” argu- “improper raise their (a)(3) petition tion was reasonable and the Instead, they agency.7 con- ment before the accordingly review is technical, raising tend that their “various Denied. objections policy, legal” to the EPA’s non-listing pre- was sufficient to proposed WALD, dissenting Judge, part in Circuit statutory right press their their serve concurring part: argument in court. We dis- construction On December 1978 the Environmental agree. (“EPA” Agency “agency”) Protection an- lubricating nounced intention to list waste its previously have held that failure We oils, hydraulic cutting oils as hazard- oils question statutory particular to raise a ous under section 3001 of the Resource Con- before an constitutes construction Recovery Act servation of 1976 See, e.g., in court. waiver (“RCRA”), amended, 42 U.S.C. Ohio, 1528; Linemaster, F.2d at 58,946, 58,957. Fed.Reg. open- that Since cases, parties In F.2d at 1308. those ing shot in the EPA’s efforts they were not saved the fact that had to list used oil as a hazardous waste have “technical, policy, legal” argu made other followed a tortuous course of hide and seek. Indeed, agency. if ments before the such Today majority permits the EPA to call rule, party could never waive a were the off latest effort to list used oil as hazard- legal long party ap claim as as the in fact determining ous without ever whether there argued something peared and before the adequate an factual basis the record for agency. surely are While there limits doing so. required congruity party’s level of between a

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, 1992 WL 469734 No. fore, suboption Agency is consider- 1990). thereupon filed The EPA March aspects Options combine Two decree, promising a consent to entered into gasoline-powered and Three to list used en- 1, 1992, May issue a final determination gine disposed.” crankcase oil when Id. at supplemental published and the 48,021. proposed rulemaking notice of to effect 48,000. September on 1991. discussing In the threat of used oil to replicating existing regulatory In environment within the addition earlier studies accompanying justification, pre- landscape, supplemental notice described mismanagement “updated thought examples of sented information” it use- numerous “potential pathways ... used oil to ful to “determine the status of oils cause light recycle chilling regulating surprising effect of 1. This claim somewhat about exaggerat- agency's 1980 statement the "EPA does re-use activities also seem somewhat cases, many regulation largely ed. agree with the claims In Federal or State unsubstantiated legitimatize, controlling recy- stigma- use and should of commenters that these activities tize, public necessarily eyes cling will discour- them in increase of hazardous waste environmentally well-operated age fide, sound re-use and flow wastes to facilities.” bona 33,084, 33,092 19, 1980). (May reclamation activities.... Commenters' claims 48,- damage environment.” See id. at The NRDC’s submitted argued comments pointed forcefully out: that more needed to be done than sitting riding back and regulato- current mismanagement of Past used oils has re- ry specifically tracks. The NRDC opposed significant dam- sulted in environmental option, the no-list documented in- countless age, Agency has documented mismanagement stances extensively. drew Of the 445 National Priorities experience “California (NPL) having [which] shows that List facilities documented (42%) Decision, listing used oil as a hazardous Records have had waste leads to responsible increase in the co-disposed handling used oils with other hazardous (Nov. oil.” Comments of at iii industrial sTdidwaste.... NRDC 13, 1991), reprinted Supplemental Appen- addition, Report Congress the 1981 (“Supp.A.”) dix 6. See also id. at 4-1 4- damage on used oil includes incidents and 54-58); 5 (Supp.A. Evergreen Comments of examples of severe threats human *14 (Nov. 6, 1991) 75). at Oil Inc. (Supp.A. health the explained and environment. As While some commenters charged that Report, in that used oil mixed with hazard- study dangers underestimated the of ous wastes has been shown have toxic or oil, they argued used that even on the basis Also, carcinogenic effects on humans. “data, of that EPA simply ignore cannot that used oil is mixed with solvents impacts plausible of mismanagement scenar- other hazardous wastes when cre- burned deciding point ios in at what to list used oil as products incomplete ated of combustion 89). hazardous.” Evergreen (Supp.A. at 19 particular are of due [which] concern 88). (Supp.A. See also id. at 18 example, For carcinogenic to their nature.

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, 2 F.3d 438 sion, including Inst. v. Elec. an assessment the success evidence In that case the “record regime prevent- regulatory the current not demonstrate” relie[d did] contaminating oil from our environ- dis regulated “ha[d] to be ever been wastes majority avoids that result ment. projected by the manner posed of’ I pleading rule of relying prudential [a]gen- held that “the EPA. Id. 446. We inappropriately to be invoked here es- think support some factual cy provide must at least high in view of the stakes involved pecially mismanagement such a its conclusion that air, soil, groundwater. The clean Id. I no reason plausible.” is see scenario existing ease EPA needs make its apply should not why the same standard enough; require regulation of used oil is projected good management as equally to rulemaking appellate less would turn Here, laid down while the has bad. seek, game in this into a of hide review regulation with framework of environmental more hide than seek. case oil, yet respect to it has cited record of or evaluation assessment

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