824 F.2d 1177 (D.C. Cir. 1987), 85-1206, American Min. Congress v. United States E.P.A.

Docket Nº:85-1206, 85-1208.
Citation:824 F.2d 1177
Party Name:17 Envtl. AMERICAN MINING CONGRESS and Engelhard Corporation, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Edison Electric Institute, et al., American Paper Institute, et al., Hazardous Waste Treatment Council, Intervenors. AMERICAN PETROLEUM INSTITUTE, Petitioner v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al
Case Date:July 31, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1177

824 F.2d 1177 (D.C. Cir. 1987)

17 Envtl.

AMERICAN MINING CONGRESS and Engelhard Corporation, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Edison Electric Institute, et al., American Paper Institute,

et al., Hazardous Waste Treatment Council, Intervenors.

AMERICAN PETROLEUM INSTITUTE, Petitioner

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondent,

Edison Electric Institute, et al., American Paper Institute,

et al., Hazardous Waste Treatment Council, Intervenors.

Nos. 85-1206, 85-1208.

United States Court of Appeals, District of Columbia Circuit

July 31, 1987

Argued Oct. 14, 1986.

Page 1178

Petitions for Review of Orders of the U.S. Environmental Protection agency.

John D. Fognani, with whom Lynn G. Guissinger, Denver, Colo., James R. Walpole and John D. Austin, Jr., Washington, D.C., were on the brief, for petitioners, American Min. Congress, et al. in No. 85-1206. Larry A. Boggs, Washington, D.C., entered an appearance for petitioners in No. 85-1206.

Stark Ritchie, with whom Stephen E. Williams, James B. Atkin, Arnold S. Block and George William Frick, Washington, D.C., for petitioner, American Petroleum Institute in No. 85-1208.

George B. Henderson, II, Atty., Dept. of Justice, with whom Margaret N. Strand, Chief, Environmental Defense Section, Dept. of Justice, Francis S. Blake, General Counsel and Steven E. Silverman, Atty., E.P.A., Washington, D.C., were on the brief, for respondent in Nos. 85-1206 and 85-1208.

David R. Case, with whom Ridgway M. Hall, Jr., Washington, D.C., was on the brief, for intervenor, Hazardous Waste Treatment Council in Nos. 85-1206 and 85-1208. William Want and Nancy S. Bryson, Washington, D.C., entered appearances for intervenor.

William R. Weissman, Washington, D.C., entered an appearance for intervenors, Edison Elec. Institute, et al., in Nos. 85-1206 and 85-1208.

David J. Greenwald, III entered an appearance for intervenors, American Paper Institute, et al., in Nos. 85-1206 and 85-1208.

Before STARR and MIKVA, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

Dissenting opinion filed by Circuit Judge MIKVA.

STARR, Circuit Judge:

These consolidated cases arise out of EPA's regulation of hazardous wastes under the Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, 42 U.S.C. Secs. 6901-6933 (1982 & Supp. III 1985). Petitioners, trade associations representing mining and oil refining interests, challenge regulations promulgated by EPA that amend the definition of "solid waste" to establish and define the agency's authority to regulate secondary materials reused within an industry's ongoing production process. In plain English, petitioners maintain that EPA has exceeded its regulatory authority in seeking to bring materials that are not discarded or otherwise disposed of within the compass of "waste."

I

RCRA is a comprehensive environmental statute under which EPA is granted authority to regulate solid and hazardous wastes. RCRA was enacted in 1976, and amended in 1978, 1980, and 1984. See The

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Quiet Communities Act of 1978, Pub.L. No. 95-609, 92 Stat. 3081; The Solid Waste Disposal Act Amendment of 1980, Pub.L. No. 96-482, 94 Stat. 2334; Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221.

Congress' "overriding concern" in enacting RCRA was to establish the framework for a national system to insure the safe management of hazardous waste. H.R.Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976), U.S.Code Cong. & Admin.News 1976, pp. 6238, 6240, 6241. In passing RCRA, Congress expressed concern over the "rising tide" in scrap, discarded, and waste materials. 42 U.S.C. Sec. 6901 (a)(2). As the statute itself puts it, Congress was concerned with the need "to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices." Id. Sec. 6901(a)(4). Congress thus crafted RCRA "to promote the protection of health and the environment and to conserve valuable material and energy resources." Id. Sec. 6902.

RCRA includes two major parts: one deals with non-hazardous solid waste management and the other with hazardous waste management. Under the latter, EPA is directed to promulgate regulations establishing a comprehensive management system. Id. Sec. 6921. EPA's authority, however, extends only to the regulation of "hazardous waste." Because "hazardous waste" is defined as a subset of "solid waste," id Sec. 6903(5), the scope of EPA's jurisdiction is limited to those materials that constitute "solid waste." That pivotal term is defined by RCRA as

any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining, and agricultural operations, and from community activities....

42 U.S.C. Sec. 6903(27) (emphasis added). As will become evident, this case turns on the meaning of the phrase, "and other discarded material," contained in the statute's definitional provisions.

EPA's interpretation of "solid waste" has evolved over time. On May 19, 1980, EPA issued interim regulations defining "solid waste" to include a material that is "a manufacturing or mining by-product and sometimes is discarded." 45 Fed.Reg. 33,119 (1980). This definition contained two terms needing elucidation: "by-product" and "sometimes discarded." In its definition of "a manufacturing or mining by-product," EPA expressly excluded "an intermediate manufacturing or mining product which results from one of the steps in a manufacturing or mining process and is typically processed through the next step of the process within a short time." Id.

In 1983, the agency proposed narrowing amendments to the 1980 interim rule. 48 Fed.Reg. 14,472 (1983). The agency showed especial concern over recycling activities. In the preamble to the amendments, the agency observed that, in light of the interlocking statutory provisions and RCRA's legislative history, it was clear that "Congress indeed intended that materials being recycled or held for recycling can be wastes, and if hazardous, hazardous wastes." Id. at 14,473. The agency also asserted that "not only can materials destined for recycling or being recycled be solid and hazardous wastes, but the Agency clearly has the authority to regulate recycling activities as hazardous management." Id.

While asserting its interest in recycling activities (and materials being held for recycling), EPA's discussion left unclear whether the agency in fact believed its jurisdiction extended to materials recycled in an industry's on-going production processes, or only to materials disposed of and recycled as part of a waste management program. In its preamble, EPA stated that "the revised definition of solid waste sets out the Agency's view of its jurisdiction over the recycling of hazardous waste ... Proposed section 261.6 then contains exemptions from regulations for those hazardous waste recycling activities that we do not think require regulation." Id. at

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14,476. The amended regulatory description of "solid waste" itself, then, did not include materials "used or reused as effective substitutes for raw materials in processes using raw materials as principal feedstocks." Id. at 14,508. EPA explained the exclusion as follows:

[These] materials are being used essentially as raw materials and so ordinarily are not appropriate candidates for regulatory control. Moreover, when these materials are used to manufacture new products, the processes generally are normal manufacturing operations.... The Agency is reluctant to read the statute as regulating actual manufacturing processes.

Id. at 14,488. This, then, seemed clear: EPA was drawing a line between discarding and ultimate recycling, on the one hand, and a continuous or ongoing manufacturing process with one-site "recycling," on the other. If the activity fell within the latter category, then the materials were not deemed to be "discarded."

After receiving extensive comments, EPA issued its final rule on January 4, 1985. 50 Fed.Reg. 614 (1985). Under the final rule, materials are considered "solid waste" if they are abandoned by being disposed of, burned, or incinerated; or stored, treated, or accumulated before or in lieu of those activities. In addition, certain recycling activities fall within EPA's definition. EPA determines whether a material is a RCRA solid waste when it is recycled by examining both the material or substance itself and the recycling activity involved. The final rule identifies five categories of "secondary materials" (spent materials, sludges, by-products, commercial chemical products, and scrap metal). These "secondary materials" constitute "solid waste" when they are disposed of; burned for energy recovery or used to produce a fuel; reclaimed; or accumulated speculatively. Id. at 618-19, 664. 1 Under the final rule, if a material constitutes "solid waste," it is subject to RCRA regulation unless it is directly reused as an ingredient or as an effective substitute for a commercial product, or is returned as a raw material substitute to its original manufacturing process. 2 Id. In the jargon of the trade, the latter category is known as the "closed-loop" exception. In either case, the material must not first be "reclaimed" (processed to recover a usable product or regenerated). Id. EPA exempts these activities "because they are like ordinary usage of commercial products." Id. at 619.

II

Petitioners, American Mining Congress ("AMC")...

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