Safe Food and Fertilizer v. E.P.A.

• Decision Date: 09 December 2003
• Docket Number: No. 02-1326.,02-1326.
• Citation: 350 F.3d 1263
• Parties: SAFE FOOD AND FERTILIZER, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1263

350 F.3d 1263

SAFE FOOD AND FERTILIZER, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 02-1326.

United States Court of Appeals, District of Columbia Circuit.

Argued October 20, 2003.

Decided December 9, 2003.

COPYRIGHT MATERIAL OMITTED

On Petition for Review of an Order of the Environmental Protection Agency.

Riyaz A. Kanji argued the cause for petitioners. With him on the briefs were Melissa Powers, Nina A. Mendelson and Charles M. Tebbutt.

Martin F. McDermott, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Steven E. Silverman, Attorney, U.S. Environmental Protection Agency.

Before: EDWARDS and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Senior Circuit Judge:

Zinc fertilizers can be produced either from virgin materials or recycled byproducts of certain industrial processes. In the rule under review here, the Environmental Protection Agency resolved that Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, would not apply to the recycled materials used to make zinc fertilizers, or to the resulting fertilizers themselves, so long as they met certain handling, storage and reporting conditions and (in the case of the fertilizers themselves) had concentration levels for lead, arsenic, mercury, cadmium, chromium, and dioxins that fall below specified thresholds. Petitioners claim that both the materials and the fertilizer are "hazardous wastes" and that therefore the EPA must regulate them under RCRA's Subtitle C.

A material is a "hazardous waste" under RCRA if it is a "solid waste" as defined in 42 U.S.C. § 6903(27) and is "hazardous" as defined in 42 U.S.C. § 6903(5). Both parties agree that the materials are "hazardous" as that word of art is used under RCRA, although (as we shall see) the EPA does not in fact regard them as posing any material hazard if they comply with the conditions specified by the rule. The issue is whether the materials in question are "solid waste." The EPA has concluded that they are not — that so long as they satisfy the stated conditions, they have not been "discarded" as RCRA's definition of solid waste uses the term.

We remand the case for further explanation regarding a narrow issue — the EPA's selection of an exemption level for chromium. In all other respects we affirm.

* * *

The regulatory status quo before adoption of the present rule was as follows: The EPA classified the secondary materials recycled to make zinc fertilizer as "solid waste," and, if "hazardous," as "hazardous waste" subject to RCRA Subtitle C regulation until a final commercial product was produced. 50 Fed. Reg. 614, 646/2-47/2, 666/2-3 (Jan. 4, 1985). In addition, a commercial product derived from a hazardous waste, if used on the land in a manner constituting "disposal," was exempt from other Subtitle C regulation so long as it satisfied the Land Disposal Restriction ("LDR") treatment standards for each hazardous waste in the product. 53 Fed. Reg. 31,138, 31,212 (Aug. 17, 1988); see also 55 Fed. Reg. 22,520 (June 1, 1990) (modifying standards). The EPA imposed this LDR standard on most zinc fertilizers made from recycled hazardous materials, but excepted ones made from the electric arc furnace dust generated in steel production, commonly known by its RCRA designation "K061."

In 1998 the EPA responded to our decision in Chemical Waste Management v. EPA, 976 F.2d 2 (D.C.Cir.1992), by adopting a new rule tightening its general LDR standards. 63 Fed. Reg. 28,556 (May 26, 1998). Several fertilizer manufacturers warned the EPA that application of the new standards would have adverse environmental effects: their products would be driven from the market in favor of the more contaminated — but exempt — K061 fertilizers. As a result, the EPA stayed the application of the 1998 LDR standards to zinc fertilizers and expressed its intention to review the whole issue of fertilizers made from recycled materials in a new rulemaking, see 63 Fed. Reg. 46,332 (August 31, 1998), which it launched in November 2000, see Proposed Rule, 65 Fed. Reg. 70,954, 70,956/2-3 (Nov. 28, 2000).

The new rule eliminates the special exemption for K061 fertilizers from Subtitle C regulation, but provides a broad conditional exemption both for certain hazardous secondary materials used in the production of zinc fertilizers and for the fertilizers themselves. The rule exempts the feedstocks if they are not speculatively accumulated and meet certain storage, record-keeping and notice requirements consistent with use of the feedstocks as valued commodities rather than wastes. It exempts zinc fertilizers made with such feedstocks if fertilizer manufacturers meet certain testing and recordkeeping requirements and if the fertilizers themselves meet maximum concentration levels for six contaminants — lead, arsenic, cadmium, chromium, mercury, and dioxins. Feedstocks failing to meet the feedstock conditions would be subject to regular Subtitle C regulation, and non-compliant fertilizer would be subject to the LDR standards. The EPA reasoned that so long as these materials met the specified conditions they should not be seen as "discarded" within the meaning of RCRA's definition of "solid waste," 42 U.S.C. § 6903(27). Final Rule, 67 Fed. Reg. 48,393/1 (July 24, 2002).

Petitioners, nonprofit organizations opposed to the new rule, filed a challenge pursuant to 42 U.S.C. § 6976(a). They attack the new exemptions as contrary to RCRA's plain meaning and as unreasonable. They also attack an element of the regulatory status quo ante, namely (for fertilizer not qualifying for the new exemption) the 1988 decision allowing fertilizers to comply with RCRA by satisfying the LDRs for each hazardous waste they contain, rather than stricter standards.

Jurisdictional issues. At the outset, the EPA poses two jurisdictional objections. First, it disputes petitioners' standing, arguing that, since fertilizers made from recycled materials are chemically identical to fertilizers made from virgin materials already on the market, petitioners cannot show constitutionally sufficient injury. The EPA also frames the argument as a claim that petitioners' injury is not redressable, because even the complete suppression of recycled fertilizer would leave virgin zinc fertilizer in use, with what the EPA posits are identical effects.

Whatever the merits of the EPA's theory, the facts don't match its premise. The record does not support the claim that contaminant concentrations in recycled fertilizer under the EPA's rule will be literally identical to those in virgin materials. Rather, the rule permits contaminant concentrations in fertilizer from recycled zinc materials at levels higher than the highest concentrations that the record shows for existing fertilizers made from virgin materials. Though the EPA argues that these differences do not have demonstrable health or environmental impacts, a conclusive showing of such impacts isn't necessary for purposes of standing. Here, plaintiffs' merits claim overlaps with their contention on standing: if there were a violation of RCRA and petitioners were exposed to the materials, that fact alone would suggest the probability of an environmental impact rising at least to the modest levels necessary for standing. See, e.g., United States v. SCRAP, 412 U.S. 669, 690 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973). See also Ass'n of American Railroads v. Dep't of Transp., 38 F.3d 582, 585 (D.C.Cir.1994) (where plaintiffs' merits claim, if correct, would establish causation for standing purposes, that element of standing is deemed adequately shown).

The EPA's second jurisdictional challenge addresses only the petitioners' attack on the residual rule, which allows fertilizers to satisfy RCRA by meeting the LDR standards. This, the EPA argues, is an impermissible "back-door" challenge to the 1988 rulemaking and is barred by the statutory requirement that petitions for review of RCRA rules be filed within 90 days of promulgation. 42 U.S.C. § 6976(a)(1). We agree.

It was in 1988 that the EPA adopted the rule that fertilizers made with recycled materials could comply with RCRA by meeting the LDR standards. The new rule leaves that principle untouched for fertilizers not qualifying for the new exemption. The EPA could not have been more explicit in the present rulemaking that the agency was "not accepting comment on these past determinations [i.e., the 1988 determination on exclusive use of the LDR standards] or otherwise reopening these issues." Proposed Rule, 65 Fed. Reg. at 70,959/1 n.2. Thus, petitioners can challenge the application of the LDR standards to fertilizers only if they show that the EPA reopened these standards in spite of the agency's explicit efforts not to do so. They make two arguments to support such a reopening claim. Neither is persuasive.

First, petitioners assert that the EPA explicitly reopened the LDR standards when it invited comment on the alternative of "retaining the current [ ] regulatory structure [i.e., the application of the LDR standards] for hazardous wastes that are used to make zinc fertilizers," 65 Fed. Reg. at 70,964/2. But it is absurd to suppose that every time an agency requests parties to compare the regulatory status quo with specific proposed alternatives, all facets of the status quo become fair game for new challenges. See, e.g., Amer. Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C.Cir. 1989).

Second, petitioners invoke Public Citizen v. NRC, 901 F.2d 147, 152 (D.C.Cir. 1990), for the proposition that an agency, by reconsidering and reinstating an old rule, implicitly opens that rule to fresh challenge even when the agency does not mean to do so. But the predicate of Public Citizen is missing. Not only have petitioners failed to show that the EPA...