208 F.3d 1047 (D.C. Cir. 2000), 98-1368, Ass'n Battery Recyclers v. United States Envtl. Protection Agency

Docket Nº:98-1368, 98-1381, 98-1392 & 98-1394
Citation:208 F.3d 1047
Party Name:Association of Battery Recyclers, Inc., et al.,Petitioners v. U.S. Environmental Protection Agency and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents
Case Date:April 21, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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208 F.3d 1047 (D.C. Cir. 2000)

Association of Battery Recyclers, Inc., et al.,Petitioners

v.

U.S. Environmental Protection Agency and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents

Nos. 98-1368, 98-1381, 98-1392 & 98-1394

United States Court of Appeals, District of Columbia Circuit

April 21, 2000

Argued October 25, 1999

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[Copyrighted Material Omitted]

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On Petitions for Review of an Order of the Environmental Protection Agency

Donald J. Patterson, Jr. argued the cause for petitioners on the RCRA classification issues. With him on the joint briefs were Harold P. Quinn, Jr., Roderick T. Dwyer, Karl S. Bourdeau, Michael W. Steinberg, Joshua D. Sarnoff, David F. Zoll, Ronald A. Shipley, William R. Weissman and Steven J. Groseclose. Michael B. Wigmore and Robert N. Steinwurtzel entered appearances.

William R. Weissman argued the cause for petitioners on the LDR treatment standards issues. With him on the briefs was Steven J. Groseclose.

Michele L. Walter, Attorney, U.S. Department of Justice, and Steven Silverman, Attorney, Office of General Counsel, U.S. Environmental Protection Agency, argued the causes for respondents. With them on the brief was Cecilia Kim, Attorney, U.S. Department of Justice.

David R. Case argued the cause for intervenors Environmental Defense Fund, Environmental Technology Council and National Mining Association. With him on the brief were Karen Florini, Donald J. Patterson, Jr., Harold P. Quinn, Jr., and Roderick T. Dwyer.

Before: Silberman, Ginsburg, and Randolph, Circuit Judges.

Opinion for the Court by Circuit Judge Randolph.

Opinion for the Court by Circuit Judge Ginsburg.

Opinion dissenting in part by Circuit Judge Randolph.

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Randolph, Circuit Judge:

These are consolidated petitions for judicial review of Environmental Protection Agency regulations promulgated on May 26, 1998, under the Resource Conservation and Recovery Act of 1976 ("RCRA"), Pub. L. No. 94-580, 90 Stat. 2795. The regulations--known collectively as the "Land Disposal Restrictions Phase IV" Rule-deal with residual or secondary materials generated in mining and mineral processing operations and EPA's classification of these materials as "solid waste"; with the treatment standards for a specific category of hazardous waste; and with EPA's test for determining whether certain wastes are hazardous. Our opinion is in three parts. The first part decides whether EPA properly defined "solid waste." We are unanimous that it did not. The second part decides, again unanimously, that EPA's treatment standards for a particular category of hazardous waste are lawful. The third part, written by Judge Ginsburg and joined by Judge Silberman, decides that EPA's test for determining toxicity is valid for certain wastes but not for others. I disagree with their conclusion for the reasons stated in my dissenting opinion.

I. Definition of Solid Waste

Two petitioners--the National Mining Association and the American Iron and Steel Institute--and an intervenor-the Chemical Manufacturers Association--challenge the portion of EPA's Phase IV Rule defining a "solid waste" in terms of how materials "generated and reclaimed within the primary mineral processing industry" are stored. 40 C.F.R. § 261.2(e)(iii). The question is of substantial importance to these petitioners because, together, they represent most of the nation's producers of coal, metals, and industrial and agricultural minerals; two thirds of the nation's steel production; and more than ninety percent of the nation's productive capacity of basic industrial chemicals.

RCRA defines "solid waste" as "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material...." 42 U.S.C. § 6903(27). Solid wastes are "considered hazardous if they possess one of four characteristics (ignitability, corrosivity, reactivity, and toxicity) or if EPA lists them as hazardous following a rulemaking." Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 915 (D.C. Cir. 1998) (citing 42 U.S.C. § 6921(a), 40 C.F.R. pt. 261). Disposal of hazardous waste is forbidden unless the waste is treated to reduce its hazardous constituents or stored in a manner ensuring that the hazardous constituents will not migrate from the disposal unit. See id. (citing 42 U.S.C. § 6924(g)(5), (m)).

To understand the contentions of the parties, it will be helpful to outline the current solid waste classification system (most of which predates the Phase IV Rule and is not being challenged). EPA's general regulation defining "solid waste" begins by repeating a portion of the statutory definition: "a solid waste is any discarded material." 40 C.F.R. § 261.2(a)(1). It then defines "discarded material" to mean "any material which is Abandoned ... or Recycled, as explained in paragraph (c) of this section...." Id. § 261.2(a)(2). Paragraph (c) identifies four situations in which "recycled" materials will be considered "solid waste":when the materials are "used in a manner constituting disposal"; when the materials are "burn[ed] for energy recovery";when the materials are "reclaimed"; and when the materials are "accumulated speculatively." 40 C.F.R. § 261.2(c)(1)-(4).

The Phase IV Rule revised only the reclamation provision.Before the revision, EPA classified reclaimed spent materials and scrap metal as solid waste. See 40 C.F.R. § 261.2(c)(3) & tbl.1 (1996). Reclaimed sludges and by-products were classified as solid waste only if they had been specifically listed in 40 C.F.R. pt. 261 as a hazardous waste following an EPA rulemaking. See 40 C.F.R. § 261.2(c)(3) &

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tbl.1 (1996). Reclaimed sludges and by-products exhibiting a characteristic of hazardous waste, but not specifically listed as hazardous wastes, were not classified as solid waste. See id. This classification system applied without regard to the industry that produced the materials.

The Phase IV Rule purported to take materials reclaimed by the mineral processing industry outside this framework and to subject these secondary materials to a new test for determining whether they constituted "solid waste." See 40 C.F.R. § 261.2(c)(3) & tbl.1. We say "purported" because it is not clear to us that EPA accomplished its objective. The relevant part of the new recycling-reclamation provision reads:

Materials [listed in a table] are not solid wastes when reclaimed (except as provided under 40 CFR261.4(a)(17)).[1]

Id. The new § 261.4(a)(17) gave a so-called "conditional exclusion": if the provision's criteria were met, reclaimed mineral processing secondary materials would not be classified as solid waste. We have trouble making sense of these two provisions. The first provision (§ 261.2(c)(3)) broadly describes what is not a solid waste, unless it complies with the other provision. But the other provision--s 261.4(a)(17)--is an exclusion, and the consequence of not complying with the provision is, of course, loss of exclusion. In other words, read together, the provisions seem to say that something is not a solid waste unless it is not excluded from being a solid waste.Lewis Carroll would be proud. But petitioners make nothing of the point and we shall therefore assume that if secondary material of this sort--derived from mineral processing--does not meet the conditions specified in § 261.4(a)(17), EPA will consider the material "solid waste" potentially subject to full RCRA Subtitle C regulation.

As to the conditions set forth in § 261.4(a)(17), EPA's dividing line between "waste" and nonwaste is the manner of storage. If the mineral processor stores secondary material destined for recycling in tanks, containers, buildings, or on properly maintained pads, the materials are not considered "solid waste." See id. § 261.4(a)(17)(iii), (iv). Given our assumption (and that of the parties), if by-products and sludges exhibiting a characteristic of hazardous waste are not stored in such a manner prior to being recycled, they may be regulated as hazardous "waste."

How long the materials are stored is of no consequence according to the regulation. See Fed. Reg. 28,556, 28,582-83 (1998). They could be placed on the ground for only a few minutes before being put back into the production process, yet they would still be subject to RCRA if not stored in accord with § 261.4(a)(17). Petitioners say this rule extends EPA's authority far beyond the statute. They ask how secondary material held for recycling in production could possibly qualify as "waste" when the statute defines "waste" as "discarded materials"? 42 U.S.C. § 6903(27).

The question is not a new one. It was asked and answered in American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"). The court began by referring to the "ordinary, plain-English meaning" of "discarded"--" 'disposed of,' 'thrown away,' or 'abandoned.' " Id. at 1184. Secondary materials destined for recycling are obviously not of that sort.Rather than throwing these materials away, the producer saves them; rather than abandoning them, the producer reuses them. After examining the structure and history of RCRA, see id. at 1184-92, the AMC I court concluded:"Congress clearly and unambiguously expressed its intent that 'solid waste' (and therefore EPA's regulatory authority) be limited to materials that are 'discarded' by virtue of being disposed of, abandoned, or thrown away." Id. at 1190. The court therefore

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set aside an EPA rule regulating secondary "materials reused within an ongoing industrial process," id. at 1182, because the materials were "neither disposed of nor abandoned," id. at 1193.

The holding in AMC I thus appears to answer the...

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