UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


AMER PETRO INST

v.

EPA


94-1683b

D.C. Cir. 2000


*	*	*


Opinion for the Court filed PER CURIAM.*


PER CURIAM: Two sets of petitioners challenge regula- tions of the
United States Environmental Protection Agency  ("EPA") promulgated
under the Resource Conservation and  Recovery Act ("RCRA"), 42 U.S.C.
s 6901 et seq. (1994). The  EPA rulemaking at issue concerned
regulating several sec- ondary materials generated by the petroleum
refining and  petrochemical industries as "solid waste" and "hazardous




__________

n * Judge Sentelle authored Part I of this opinion, Judge Williams 
Part II, and Judge Rogers Part III.


Industry petitioners, American Petroleum Institute  ("API"), the
Chemical Manufacturers Association ("CMA"),  and Texaco, Inc.
(collectively, "industry petitioners"), assert  two main categories of
challenges. The first category chal- lenges EPA's regulation under
RCRA of two materials as  solid waste. The second challenges EPA's
listing of certain  refinery wastes as hazardous waste. Environmental
petition- ers, Louisiana Environmental Action Network ("LEAN"), 
Communities for a Better Environment of California  ("CBE"), the
Sierra Club, and the Environmental Technology  Council ("ETC")
(collectively, "environmental petitioners"),  challenge EPA's failure
to list certain items and further  allege an Administrative Procedure
Act ("APA"), 5 U.S.C.  s 551 et seq. (1994), notice and comment


We deny the petition of the industry petitioners on all  counts but
one, on which we vacate and remand to EPA for  further proceedings.
Finding that we lack jurisdiction to  consider the claims of
environmental petitioners, we dismiss  their petition.


I. Industry Petitioners' Challenges to EPA's Regulation  of Recovered
Oil and Wastewaters as Solid Waste


A. Statutory Framework


RCRA is a comprehensive environmental statute granting  EPA authority
to regulate solid and hazardous wastes. "Sol- id wastes" are governed
by Subtitle D of RCRA, and are  generally subject to less stringent
management standards  than "hazardous wastes" which are regulated
under Subtitle  C. For purposes of RCRA, Congress defined solid waste
as  follows:


The term "solid waste" means any garbage, refuse,  sludge from a waste
treatment plant, water supply treat- ment plant, or air pollution
control facility and other  discarded material, including solid,
liquid, semisolid, or  contained gaseous material resulting from


commercial, mining, and agricultural operations, and  from community
activities....


42 U.S.C. s 6903(27).


In pursuit of its congressionally conferred duty and author- ity to
regulate solid waste under RCRA, the EPA has  adopted regulations
defining solid waste for purposes of its  hazardous waste regulations:
"A solid waste is any discarded  material," 40 C.F.R. s 261.2(a)(1)
(1999), subject to a number  of exclusions enumerated in s 261.4(a)
and case-by-case vari- ances under ss 260.30 and 260.31. The term
"discarded  material" for purposes of the regulation means any
material  which is abandoned, recycled, or considered inherently
waste- like. 40 C.F.R. s 261.2(a)(2).


In 1994 and 1998 rulemakings in pursuit of its RCRA  obligations, the
EPA examined the production processes of  the petroleum refining
industry. As pertinent to the issue  before us, EPA considered whether
to exclude from the  definition of solid waste two secondary
materials: oil-bearing  wastewaters generated by the petroleum
refining industry  and recovered oil produced by the petrochemical
manufactur- ing industry. See Hazardous Waste Management System, 
Identification and Listing of Hazardous Waste; Petroleum  Refining
Process Wastes; Land Disposal Restrictions for  Newly Identified
Wastes; and CERCLA Hazardous Sub- stance Designation and Reportable
Quantities, 63 Fed. Reg.  42,110 (1998) ("Final Rule"); Hazardous
Waste Management  System, Identification and Listing of Hazardous
Waste;  Petroleum Refining Process Wastes; Land Disposal Restric-
tions for Newly Identified Wastes; and CERCLA Hazardous  Substance
Designation and Reportable Quantities, 60 Fed.  Reg. 57,747 (1995)
("Proposed Rule"); Identification and  Listing of Hazardous Waste;
Amendments to Definition of  Solid Waste, 59 Fed. Reg. 38,536 (1994)
("1994 Rule"). EPA  determined that oil-bearing wastewaters are solid
waste for  purposes of RCRA regulation, and that recovered oil from 
petrochemical facilities is excluded from the definition of solid 
waste only when specified conditions are met. See Proposed  Rule, 60


Reg. at 42,128-30; 40 C.F.R. s 261.4(a)(12), (18). Industry 
petitioners challenge these conclusions.


B. Oil-Bearing Wastewaters


In petroleum refining, impurities are removed and usable  hydrocarbon
fractions are isolated from crude oil feedstock.  See Final Rule, 63
Fed. Reg. at 42,113/3-42,115/1, 42,121/2.  Large quantities of water
are used, and the resulting waste- waters contain a small percentage
of residual oil. These "oil- bearing wastewaters" are destined for
ultimate discharge, but  only after a three-step treatment process is
first applied.  The first phase of treatment, known as "primary
treatment,"  removes certain materials including the oil. This phase
has  at least two beneficial consequences: (1) it meets a Clean  Water
Act requirement that refineries remove oil from their  wastewater, and
(2) it allows refineries to recover a not  insignificant quantity of
oil (which industry claims can range up to 1,000 barrels a day  at
certain refineries) which is cycled back into the refinery produc-


Industry petitioners and EPA disagree over when these  wastewaters
become discarded for purposes of the solid waste  definition. While no
one disputes that discard has certainly  occurred by the time the
wastewaters move into the later  phases of treatment, the question is
whether discard happens  before primary treatment, allowing regulation
of wastewater  as solid waste at that point, or not until primary
treatment is  complete and oil has been recovered for further


EPA's initial proposal excluded oil-bearing wastewaters.  See 1994
Rule, 59 Fed. Reg. at 38,540/3 (citing Identification  and Listing of
Hazardous Waste; Amendments to Definition  of Solid Waste, 53 Fed.
Reg. 519, 525-26 (1988)). However, it  changed its mind in 1994 and
concluded that even before the  oil is recovered in primary treatment,
"the wastewaters are  discarded materials and hence solid wastes
subject to regula- tion under RCRA." 59 Fed. Reg. 38,540/1. EPA
stated:  "Primary wastewater treatment operations exist to treat 
plant wastewaters." Id. at 38,539/3. It noted that the per- centage of
oil in the wastewater is very small and "not 


significant in the context of a refinery's overall production 
activities," and that the Clean Water Act mandates such  treatment.
Id.; see also 40 C.F.R. Part 419; API v. EPA,  540 F.2d 1023 (10th
Cir. 1976) (discussing water discharge  regulations). For these stated
reasons, EPA concluded that  "[c]learly, wastewater treatment is the
main purpose of the  systems in question, and any oil recovery is of
secondary  import." 59 Fed Reg. at 38,539/3.


EPA restated its conclusion in its subsequent 1995 Pro- posed Rule, 60
Fed. Reg. at 57,755/3, and retained it in the  Final Rule. See 63 Fed.
Reg. at 42,184 (codified at 40 C.F.R.  s 261.4(a)(12)(ii)). The actual
regulation does not mention  wastewaters. But by not being excluded,
all wastewaters  including oil-bearing wastewaters are considered to
fall under  EPA's general regulatory definition of solid waste.


Whether a material has been "discarded," subjecting it to  RCRA
regulation, is a question we have considered in four  prior cases.
First, in American Mining Congress v. EPA,  824 F.2d 1177 (D.C. Cir.
1987) ("AMC I"), we held that the  term "discarded" conforms to its
plain meaning. Id. at 1193.  Thus, items that are "disposed of,
abandoned, or thrown  away" are discarded. Id. AMC I concluded that
"in-process  secondary materials," that is, materials "destined for
immedi- ate reuse in another phase of [an] industry's ongoing produc-
tion process," are not discarded under RCRA. Id. at 1185,  1193. We
recently reaffirmed that holding in Association of  Battery Recyclers,
Inc. v. EPA, 208 F.3d 1047 (D.C. Cir.  2000), where we reiterated that
EPA cannot regulate as solid  waste secondary materials "destined for
reuse as part of a  continuous industrial process" that is therefore
"not aban- doned or thrown away." Id. at 1056.


At the other end of the spectrum we have held that a  material that has
been "indisputably 'discarded' " can, of  course, be subjected to
regulation as solid waste. API v.  EPA, 906 F.2d 729, 741 (1990).
Where a material was  "delivered to [a metals reclamation] facility
not as part of an  'ongoing manufacturing or industrial process'
within 'the gen- erating industry,' but as part of a mandatory waste


plan prescribed by EPA," we concluded that a material was  not
precluded from being classified by EPA as a solid waste.  Id.; see
also United States v. Ilco, Inc., 996 F.2d 1126, 1132  (11th Cir.
1993) ("Previously discarded solid waste, although  it may at some
point be recycled, nonetheless remains solid  waste.").


A material somewhere between the extremes of ongoing  production and
indisputable discard was addressed in Ameri- can Mining Congress v.
EPA, 907 F.2d 1179 (D.C. Cir. 1990)  ("AMC II"). Industry petitioners
claimed that sludges from  wastewater stored in surface impoundments,
which "may"  later be reclaimed for treatment, could not be regulated.
Id.  at 1186. We disagreed and deferred to EPA's determination  that
such sludges have been discarded. Nothing, we rea- soned, prevents EPA
from regulating as "solid wastes" mate- rials managed in land disposal
units which are no longer part  of an industrial process. See id. at
1186-87; see also Owen  Elec. Steel Co. of S.C., Inc. v. Browner, 37
F.3d 146, 150 (4th  Cir. 1994) (slag recycled after sitting for up to
six months was  reasonably classified as solid waste).


Industry petitioners rely primarily on AMC I. They first  contend that
the oil-bearing wastewaters at issue in this case  cannot be
classified as discarded because AMC I already said  they are not. We
disagree. True, API's brief in AMC I  characterized oil-bearing
wastewaters as part of an ongoing  industrial process. Our opinion in
AMC I, however, did not  decide this question. We only held that
in-process secondary  materials are not "discarded" so that EPA could
not regulate  them; we did not address the discard status of any of
the  particular materials discussed in the briefs. See AMC I, 824 
F.2d at 1181 (describing the petroleum refining process); cf.  Battery
Recyclers, 208 F.3d at 1056 (holding that "all we can  say with
certainty is that at least some of the secondary  material EPA seeks


Industry petitioners also contend that even if AMC I did  not decide
the issue, oil-bearing wastewaters cannot be regu- lated because they
are (as claimed in API's AMC I brief)  unquestionably in-process
materials not yet discarded. Alter-


nately, even if the status of oil-bearing wastewaters is not so  plain,
petitioners assert that EPA's conclusion is arbitrary  and capricious
because it is not based on reasoned decision- making. See, e.g., Motor
Vehicle Mfrs. Ass'n of the United  States, Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43  (1983) (agency must "articulate a
satisfactory explanation for  its action including a rational
connection between the facts  found and the choice made") (internal
quotation marks omit- ted). Petitioners emphasize that primary
treatment yields  valuable oil that is reinserted into the refining
processes in a  continuous operation. They also claim that oil
recovery oper- ations began long before Clean Water Act regulations
re- quired it. In sum, they contend that oil recovery in primary 
treatment is a part of in-process oil production.


At bottom, the parties disagree over the proper character- ization of
primary treatment. Is it simply a step in the act of  discarding? Or
is it the last step in a production process  before discard? Our prior
cases have not had to draw a line  for deciding when discard has
occurred. While the issue was  closest in AMC II, the sludges in
dispute there were de- scribed as being stored in surface impoundments
"that may at  some time in the future be reclaimed." AMC II, 907 F.2d
at  1186. We concluded that EPA's interpretation of "discarded"  as
including the sludges was reasonable and entitled to  deference under
Chevron U.S.A. Inc. v. Natural Resources  Defense Council, Inc., 467
U.S. 837, 842-45 (1984). See AMC  II, 907 F.2d at 1186-87; Battery
Recyclers, 208 F.3d at 1055;  cf. Owen Elec., 37 F.3d at 150. We did
not, however, focus on  whether EPA's reasoning to reach that result
was arbitrary  or capricious under the APA. See State Farm, 463 U.S.
at  43; 5 U.S.C. s 706(2)(A) (1994). The second step of Chevron 
analysis and State Farm arbitrary and capricious review  overlap, but
are not identical. See Michigan v. EPA, ---  F.3d ----, 2000 WL
180650, *17 (D.C. Cir. 2000); Arent v.  Shalala, 70 F.3d 610, 614-16


It may be permissible for EPA to determine that the  predominant
purpose of primary treatment is discard. Legal  abandonment of
property is premised on determining the  intent to abandon, which
requires an inquiry into facts and 


circumstances. See Baglin v. Cusenier Co., 221 U.S. 580,  597-98
(1911); International Finance Corp. v. Jawish, 71  F.2d 985, 986 (D.C.
Cir. 1934); see also Katsaris v. United  States, 684 F.2d 758, 761-62
(11th Cir. 1982) (collecting  cases). Where an industrial by-product
may be characterized  as discarded or "in process" material, EPA's
choice of charac- terization is entitled to deference. See AMC II, 907
F.2d at  1186. However, the record must reflect that EPA engaged in 
reasoned decisionmaking to decide which characterization is 
appropriate. The record in this case is deficient in that  regard. EPA
has noted two purposes of primary treatment  and concludes,
"[c]learly, wastewater treatment is the main  purpose." 1994 Rule, 59
Fed. Reg. 38,539/3. As English  teachers have long taught, a
conclusion is not "clear" or  "obvious" merely because one says so.


EPA points out that primary treatment only recovers a  small amount of
oil relative to the entire output of a typical  refining facility.
However, the oil is still valuable and usable,  so that reason alone
cannot show discard. The rock of a  diamond mine may only contain a
tiny portion of precious  carbon, but that is enough to keep miners
busy. According to claims by the  refining industry, the net amount of
oil recovered may reach  1,000 barrels a day for certain refineries.
It is plausible to claim, as industry  petitioners do, that refiners
engage in primary treatment first  and foremost to recover this usable
resource. At the very  least, EPA cannot merely rely on the small
relative amount of  oil recovered from primary treatment without
further expla- nation.


EPA also notes that the Clean Water Act requires primary  treatment
before discharge. If refiners got nothing from  primary treatment,
this might be a compelling rationale be- cause it would be hard to
explain why, other than to discard,  refiners would engage in a costly
treatment activity with no  economic benefits. See API, 906 F.2d at
741. However,  petitioners claim they would engage in primary
treatment  regardless of the treatment standards in order to recover
the  desired oil. EPA does not explain why this possibly valid 
motivation is not compelling. EPA makes no attempt to  balance the
costs and benefits of primary treatment, or 


otherwise to explain why the Clean Water Act requirements  are the real
motivation behind primary treatment. Indeed,  without further
explanation, it is not inherently certain why a  substance is
definitively "discarded" if its possessor is con- tinuing to process
it, even though the possessor's decision to  continue processing may
have been influenced, or even pre- dominantly motivated, by some
external factor. Otherwise  put, it is not so obvious as EPA would
have us hold that if the  industry petitioners conceded that their
overriding motivation  in further processing the wastewaters was
compliance with  Clean Water Act regulations that they would then
conclusive- ly be discarding the material in question even while
further  processing it. If the non-Clean Water Act benefits of the 
initial treatment are enough to justify firms' incurring the  costs
(petitioners point to material in the record that may  support such a
proposition), the EPA would have to reconcile  that fact with any
conclusion that the Clean Water Act  purpose was primary.


In short, EPA has not set forth why it has concluded that  the
compliance motivation predominates over the reclamation  motivation.
Perhaps equally importantly it has not explained  why that conclusion,
even if validly reached, compels the  further conclusion that the
wastewater has been discarded.  Therefore, because the agency has
failed to provide a rational  explanation for its decision, we hold
the decision to be arbi- trary and capricious. See State Farm, 463
U.S. at 46-57;  Illinois Public Telecomms. Ass'n v. FCC, 117 F.3d 555,
564  (D.C. Cir. 1997). We therefore vacate the portion of EPA's 
decision declining to exclude oil-bearing wastewaters from the 
statutory definition of solid waste, and remand for further 
proceedings. We do not suggest any particular result on  remand, only
a reasoned one demonstrating when discard  occurs if EPA wishes to


C. Petrochemical Recovered Oil


Unlike petroleum refiners, petrochemical manufacturers do  not refine
crude oil but instead use refined petroleum prod- ucts and other
feedstocks to produce petrochemical products 


such as organic chemicals. These production processes can  produce
residual oil, known as "petrochemical recovered oil."  Final Rule, 63
Fed. Reg. at 42,114 n.2. This oil can be  inserted into the petroleum
refining process.


EPA crafted a regulation excluding petrochemical recov- ered oil from
the definition of solid waste, provided that  certain conditions are
met. These conditions are designed to  disqualify from the exclusion
oil that contains non-refinable  hazardous materials. See id. at
42,129-30. EPA was con- cerned that if additional unneeded materials
present in petro- chemical recovered oil were covered by the
exclusion, it would  allow for the improper disposal of waste
materials through  adulteration. Such activity is called "sham
recycling." See  United States v. Marine Shale Processors, 81 F.3d
1361, 1365  (5th Cir. 1996). Simply put, if extra materials are added
to  petrochemical recovered oil that provide no benefit to the 
industrial process, EPA finds this to be an act of discard  under the
guise of recycling. Although EPA apparently does  not know if sham
recycling actually occurs in this industry, it  was concerned because
some of the petrochemical recovered  oil samples it tested were
contaminated with chlorinated or  other halogenated materials that


The EPA rule promulgated excludes from its solid waste  definition
"petrochemical recovered oil ... to be inserted into  the petroleum
refining process ... along with normal petrole- um refinery process
streams, provided [that] [t]he oil is  hazardous only because it
exhibits the characteristic of ignita- bility ... and/or toxicity for
benzene...." Final Rule, 63  Fed. Reg. 42,185 (codified at 40 C.F.R. s
261.4(a)(18)(i)).  EPA explained that the ignitability and benzene
toxicity  properties are typical of or very similar to basic petroleum
 refining feedstocks. See Final Rule, 63 Fed. Reg. at 42,130/1.  Thus,
the exclusion does not cover petrochemical recovered  oil that is
hazardous due to the presence of other hazardous  materials. The
exclusion also contains other conditions  meant to help curb sham
recycling, such as when petrochemi-


cal recovered oil is "speculatively accumulated before being  recycled
into the petroleum refining process." Id.


Industry petitioner CMA makes one argument, premised  solely on Chevron
step one. CMA argues that EPA has no  authority to regulate any
petrochemical recovered oil under  any circumstances because such
materials are not "discard- ed." The reasonableness of the conditions
adopted by EPA  as part of its exclusions are not challenged because,
in CMA's  opinion, no such conditions may be imposed.


This Chevron plain meaning argument fails because EPA is  correct that
abandoning a material is discarding even if  labeled recycling. EPA is
not violating AMC I's definition of  discard. To the contrary, the
premise of EPA's rule is sound  precisely because it is meant to
regulate only discarded  materials. EPA can regulate material
"discarded" through  sham recycling even though it cannot regulate
under RCRA  materials that are not discarded. Speculatively
accumulated  recovered oil is a clear example of a condition imposed
under  the exclusion which shows that some petrochemical recovered 
oil can indeed be considered as discarded. Even if, assuming  for the
sake of argument, the rule's many conditions might  incidentally
regulate oil containing chemicals not caused by  sham recycling (and
therefore not discarded), that is beyond  the claim we consider today.
Presumably a refiner in a  specific case could attempt to show that
additional chemicals  in the oil are not a product of adulteration,
not discarded, and  outside EPA's authority to regulate such material
under  RCRA. We therefore deny CMA's petition as to petrochemi- cal


II. Industry Petitioners' Challenges to Listing  of Refinery Wastes as
Hazardous


Industry petitioners allege that the listed refinery residuals  do not
pose a "substantial present or potential hazard to  human health or
the environment," RCRA s 1004(5)(B), 42  U.S.C. s 6903(5)(B); 40
C.F.R. s 261.11(a)(3) (emphasis add- ed), and thus were improperly
listed as "hazardous waste."  Their argument is based on EPA's
explicit recognition that 


for some of the wastestreams at issue "population risk" is  "near
zero." Notice of Proposed Rulemaking: Hazardous  Waste Management
System, 60 Fed. Reg. 57,747, 57,789/2  (1995). Our disposition of this
claim turns on the relationship  between "individual risk," which EPA
regarded as substan- tial, and "population risk," which for some
wastestreams it  acknowledged as negligible. Until a letter filed
after oral  argument, petitioners did not attack the EPA's
characteriza- tion of the individual risks, and thus we have no
occasion to  consider whether the agency lawfully characterized such


Before considering this claim, we pause for a brief explica- tion of
these concepts. "Population risk" is, as its name  suggests, the risk
of the population at large, generally calcu- lated as an "upper bound"
estimate of risk for the population  overall. It is commonly measured
in terms of health effects  cases over a given time period (e.g.,
cancer deaths caused per  year). Draft Report: Assessments of Risks
From the Man- agement of Petroleum Refining Wastes: Background Docu-
ment 2-25 (October 1995) ("Draft Report"). "Individual risk"  is
calculated variously as a "bounding estimate," a "central  tendency
estimate," or a "high-end estimate," for a member  of a particular
segment of the population. Id. at 2-33. (For  high-end estimates, the
agency set the two most sensitive  parameters at the high end (90th
percentile point on the  distribution), and set the others at their
central tendency.  Final Rule, 63 Fed. Reg. at 42,117/2, 42,120 (Table
IV-2)  (1998).) Unlike population risk, individual risk is commonly 
measured in terms of lifetime risk. As the term population  risk seems
to imply, it is an aggregate, calculated either by  "summing the
estimated individual risk over all of the individ- uals in the
population," Draft Report at 2-34, or by estimat- ing methods aimed at
the same goal, id. EPA counsel  confirmed at oral argument that
population risk aggregates  individual risk.


Suppose, for example, that a particular waste poses an  individual
1-in-100,000 lifetime risk of death from cancer to  100 people. The
estimated annual population risk is 1 in  100,000 divided by 70, since
the "individual" risk estimate 


assumes a 70-year lifespan, and multiplied by 100, to reflect  the 100
persons exposed; thus the estimated additional annu- al cancer
incidence for this population is 100 X 1/7,000,000 =  1.4 X 10-5 (or,
1.4 cases every 100,000 years). Of course any  other cancer cases
estimated to result from exposure to the  waste across the overall
population would be added in to  produce the complete population risk


According to established EPA practice, wastestreams with  "high-end
individual cancer-risk level[s]" of 1 in 100,000 life- times or higher
"generally are considered initial candidates"  for listing, and those
that pose a risk of at least 1 in 10,000  lifetimes are "presumptively
assumed" to merit listing. No- tice of Proposed Rulemaking: Hazardous
Waste Management  System, 59 Fed. Reg. 66,072, 66,077 (1994). EPA
found that  the risks posed by the refinery residuals generally met at
 least the candidate level for listing. See Final Rule, 63 Fed.  Reg.
at 42,150-55. But in the case of one subcategory of  clarified slurry
oil ("CSO") sediment, namely landfilled sedi- ments, EPA appears to
acknowledge that high-end individual  risk was actually as low as 4 X
10-6, i.e., 4 cancer deaths in  one million lifetimes of exposure, id.
at 42,152/2 (expressed as  "4E-6"), and "that the incremental
[population] risk in terms  of cancer cases avoided would be near
zero." Notice of  Proposed Rulemaking: Hazardous Waste Management Sys-
tem, 60 Fed. Reg. 57,747, 57,789 (1995). Petitioners argue  that EPA's
failure to consider the "near zero" population risk,  which by their
calculations based on EPA's figures ranged  from 0.3 cancer cases in
10,000 years to 0.7 cases in 1 million  years, API's Initial Br. at
34, rendered its listing unlawful. 5  U.S.C. s 706(2)(A).1




__________

n 1 The passages of the record cited by petitioners for a popula- tion
risk as low as 0.7 cases in a million years appear to refer not to  an
overall aggregate but only to the risk for a subset of the exposed 
population, 76 home gardeners. See Joint Appendix at 2592. EPA, 
however, does not defend on the basis that petitioners have chosen  an
incomplete figure for population risk. (We note that a popula- tion
risk of 0.7 cases in a million years is equivalent to an individual 
risk of 5 cancers in 100,000 lifetimes, which would be within EPA's 
"candidate" levels for listing.)


Were population risk a factor that EPA had to weigh with  and against
individual risk to determine whether a particular  hazard was
"substantial," the Agency would have to provide a  reason for ignoring
it in this instance. Dithiocarbamate Task  Force v. EPA, 98 F.3d 1394,
1398-99 (D.C. Cir. 1996). But  neither the statute nor the regulation
identifies population  risk per se as one of the mandatory factors
that the Agency  must consider. See 42 U.S.C. s 6921(a); 40 C.F.R.  s
261.11(a)(3). Under EPA's regulations, the Administrator  must
"consider[ ]" "[t]he nature and severity of the human  health and
environmental damage that has occurred" from  mismanagement of the
waste, 40 C.F.R. s 261.11(a)(3)(ix);  but this does not necessarily
imply that substantial individual  risk alone, without high population
risk, cannot be enough to  constitute a "substantial ... hazard."


Much of what EPA has written could be taken as requiring  substantial
population risk. Thus, here it observed, "Popula- tion risk is only
one of many factors to be considered," Final  Rule, 63 Fed. Reg. at
42,138/3, arguably suggesting that it  always "consider[s]" it, so
that zero or near-zero population  risk would exonerate, or tend to
exonerate, a wastestream.  In context, however, we believe we may
discern the Agency's  path to its conclusion that individual risk
alone may be  enough to justify a hazardous waste listing, regardless
of  population risk. Motor Vehicle Mfrs. Ass'n of the United  States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43  (1983). EPA
states, for instance, that it "does not believe  that it is
appropriate to allow contamination from waste  management units to
cause substantial risk to nearby resi- dents simply because there are
few wells in the immediate  area" and that its "decision to list these
wastes is based  primarily on the concern over risks to those
individuals who  are significantly exposed, even if there are
relatively few of  them." Final Rule, 63 Fed. Reg. at 42,138/3
(emphasis  added). These justifications are consistent with its 1995 
Guidance for Risk Characterization, which states that when  small
populations are exposed (and thus population risk is  low),
"individual risk estimates will usually be a more mean- ingful


cited instances (primarily in the Superfund context) in which, 
consistent with this reasoning, it "rejected using population  risk as
the point of departure" and took action because of the  high
individual risk even though population risk was low. Id.  at 42,139/1.
We thus read EPA as saying--in consonance  with both the governing
statute and regulation--that it will  regulate a waste that poses a
substantial risk to highly  exposed individuals, even if that risk
poses a relatively small  risk to the population at large.


Petitioners also argue that if RCRA is read to allow EPA  to list
wastes that pose "near zero" population risk without  establishing a
stopping point, then the statute effectuates a  violation of the
nondelegation principle. See American  Trucking Ass'ns, Inc. v. EPA,
175 F.3d 1027, 1034 (D.C. Cir.  1999) (per curiam), modified on reh'g,
195 F.3d 4 (D.C. Cir.  1999), cert. granted, 120 S. Ct. 2003 (May 22,
2000). But  petitioners failed to attack EPA's judgment that the
individu- al risks presented here alone constituted a "substantial" 
hazard; rather they assumed the necessity of a population  risk
factor, and then attacked any notion of population risk  that could
slide so low. But in the EPA view population risk  drops out of the
calculation altogether under the facts pre- sented, so we have no
occasion to review petitioners' claim  that the "population risk"


Industry petitioners also allege that even if the listings are  valid,
they nonetheless are overbroad and should be vacated.  Several of
these contentions, we think, are not only adequate- ly answered in the
EPA's brief but are also too fact-specific to  justify exposition in a
published opinion. The other two call  for explicit analysis.


First, petitioners argue that EPA's listing of CSO sediment  is
overbroad. Although according to petitioners "CSO is  often blended,
in various proportions, with other petroleum  products," EPA sampled
only sediment from CSO stored by  itself. API's Initial Br. at 46. In
defense of its action EPA  appeals to the well-established "mixture
rule," providing that  the mixture of a solid waste and a listed
hazardous waste is  itself a hazardous waste. 40 C.F.R. s


Although EPA's brief reads as if it viewed the decision here  as a
simple application of the mixture rule, industry petition- ers point
out that, strictly speaking, this is not so: sediment  generated from
a mixture of CSO and other refinery products  is not itself the
mixture of CSO sediment with a solid waste.  To put it more generally,
to say that any mixture of hazard- ous waste X and solid waste Y (the
latter being any solid  waste whatever) is a hazardous waste--as the
mixture rule  does--is not exactly the same as saying that where the 
sediment of X is a hazardous waste, the sediment of X and Y  (Y being
any substance whatever) is a hazardous waste.  Thus, we think EPA in
fact extended its mixture rule, or  developed a corollary. But
petitioners have pointed us to  nothing in the record or in common
sense that would contra- dict EPA's belief that the sediment generated
from a CSO  blend would contain CSO sediment. See Final Rule, 63 Fed. 
Reg. at 42,153/2 (asserting that it would be likely to generate  CSO
sediment). On this record, then, we see nothing to  upset the EPA


Second, industry petitioners argue that EPA's listing of  guard beds
was arbitrary and capricious. These are related  to hydrotreating and
hydrorefining catalysts, which EPA  decided to list, and to
hydrocracking catalysts, which it did  not list. EPA acknowledged that
there is no "universally  established or accepted" way of
distinguishing among these  three processes, although they can be
viewed as differing in  terms of "degrees of severity of operating
conditions and  conversion of larger hydrocarbons to smaller molecules
 ('cracking'), and/or feeds." Final Rule, 63 Fed. Reg. at  42,155/1.
The proposed regulations defined hydrorefining as  including
"processes where 10 percent of the feed or less is  reduced in
molecular size," and hydrocracking as including  "processes where 50
percent of the feed or more is reduced in  molecular size." Id. at
42,155/2. EPA rejected this proposal,  determining that the "simplest
way" to distinguish hydro- cracking catalysts from hydrotreating and
hydrorefining cata- lysts was to rely on the categories used by the
DOE's  Petroleum Supply Annual, under which refineries annually 
submit data on operating capacity for catalytic hydrocracking 


and catalytic hydrotreating. Id. at 42,155/2-3. "[I]f a refin- ery has
been classifying its hydroprocessor as a catalytic  hydrocracker for
the purposes of the DOE's Form EIA-820,  spent catalyst from this unit
would not be covered by K171 or  K172," and conversely for
hydrotreaters. Id. at 42,155/3.


EPA, however, excepted "guard beds" from this criterion,  ruling that
their wastes should be listed regardless of the  refinery's
classification. Guard beds "are used to extend the  life of the
downstream catalytic bed (e.g., reformer, hydro- cracker,
isomerization reactor) by removing sulfur, oxygen,  nitrogen, and/or
heavy metals." Id. at 42,156/1. EPA pro- vided little by way of
explanation for its classification, except  to say that it "agrees
[with the catalyst reclaimers] that these  pretreatment units, or
'guard units,' should be covered under  the listing descriptions in


EPA's description of guard beds as "desulfurization pre- treaters,"
id., however, shows that it viewed them as fitting  squarely within
the DOE definition of catalytic hydrotreating,  which includes
"desulfurization [and] removal of substances  (e.g., nitrogen
compounds) that deactivate catalysts." Id. at  42,155/3. Thus, if EPA
was correct in using the DOE classifi- cations generally, a
proposition petitioners do not contest, and  if the reason for using
those classifications here pointed  toward listing guard beds, it was
reasonable for EPA to do  so--even though, for reasons that are
unclear, guard beds  end up otherwise classified for DOE.


This is true even if, as industry petitioners commented  below and now
argue, guard beds may involve some hydro- cracking in reducing the
feedstock molecular size. EPA  rejected a reliance on molecular
conversion rates in favor  (implicitly) of the processes' roles in
removing contaminants;  accordingly it could permissibly classify
guard beds with the  other listed processes.


III. Environmental Petitioners' Challenges  to EPA's Non-Listing
Determinations,  and Notice and Comment Claim


Environmental petitioners, see supra at 3, challenge EPA's  decisions
not to: (1) classify unleaded gas storage tank sedi-


ment ("UGSTS") as a hazardous waste; (2) exempt otherwise  "hazardous"
wastes from being classified as such if they are  used in the
petroleum coking process, on the basis of inade- quate notice and
opportunity to comment on the exemption;  and (3) classify coke
product and fines inadvertently released  from saleable piles of coke
as hazardous waste. While EPA  joined issue on the merits of the
environmental petitioners'  first two contentions, API, as intervenor
with respect to their  petition, contends that they lack standing.2
Essentially, API  contends that the environmental petitioners fail to
link the  harms of which their members complain with the regulatory 
actions that they wish EPA to take. API and EPA also  contend that the
court lacks jurisdiction over the environmen- tal petitioners' third
contention, regarding coke product and  fines, because EPA's decision
not to list these substances is a  deferral of rulemaking, rather than
a final rule. We hold that  the environmental petitioners have failed
to establish that  they have standing to raise their contentions with
respect to  UGSTS and the coking process exemption, and that EPA's 
inaction on coke product and fines is not justiciable under the 
Resource Conservation and Recovery Act ("RCRA"), 42  U.S.C. s 7006(a).
Accordingly, because the court lacks juris- diction, we dismiss the
environmental petitioners' petition.


A. UGSTS


The environmental petitioners challenge EPA's decision not  to list as
hazardous waste the sediment found in discarded  storage tanks that
once held unleaded gasoline, maintaining  in general terms that EPA's
failure to list this waste as  hazardous has placed its members in
harm's way. For  Article III standing, a petitioner must show that
"(1) it has  suffered an 'injury in fact' that is (a) concrete and
particular- ized and (b) actual or imminent, not conjectural or
hypotheti- cal; (2) the injury is fairly traceable to the challenged




__________

n 2 Because the environmental petitioners do not rely on the 
Environmental Technology Council ("ETC") or its members for  standing,
we need not address API's challenge to ETC's prudential  standing.


of the defendant; and (3) it is likely, as opposed to merely 
speculative, that the injury will be redressed by a favorable 
decision." Friends of the Earth, Inc. v. Laidlaw Environ- mental
Services, Inc., 120 S. Ct. 693, 704 (2000) (citing Lujan  v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). An  organization has
standing to sue "on behalf of its members  when its members would
otherwise have standing to sue in  their own right, the interests at
stake are germane to the  organization's purpose, and neither the
claim asserted nor the  relief requested requires the participation of
individual mem- bers in the lawsuit." Id. (citing Hunt v. Washington
State  Apple Advertising Comm'n., 432 U.S. 333, 343 (1977)).


At issue is whether the environmental petitioners' evidence 
demonstrates that EPA's alleged failings have caused a trace- able
"concrete and particularized" harm to their members  that is "actual
or imminent". In Louisiana Environmental  Action Network v. EPA, 172
F.3d 65 (D.C. Cir. 1999) ("LEAN  I"), the court reiterated that for
purposes of standing a  petitioner need not establish the merits of a
case, i.e., that  localized harm has in fact resulted from a federal
rulemaking,  but rather must demonstrate that there is a "substantial 
probability" that local conditions will be adversely affected,  and
thus will harm members of the petitioner organization.  LEAN I, 172
F.3d at 68 (citing Florida Audubon Society v.  Bentsen, 94 F.3d 658,
666 (D.C. Cir. 1996) (en banc)). In  LEAN I, petitioners alleged that
their members would be  adversely affected by a federal rule
permitting variances from  generally applicable treatment standards
for waste prior to  landfill disposal. At least three LEAN members
lived near  the Carlyss landfill where most waste from the state of 
Louisiana "would be 'land disposed' if excavated and treated.  Under
LEAN's theory, 'lower quality' (less treated) wastes  [would] be
deposited in Carlyss" as a result of the variances.  Id. at 67. The


Petitioners have noted that in the state of Louisiana  there are over
100 inactive or abandoned hazardous  waste sites for which cleanup has
already been found 


necessary, as well as about thirty RCRA facilities desig- nated "high
priority." It is therefore all but certain that  remediation
activities will continue to occur apace. Even  if the
variance-to-remediation ratio is fairly low, the  amount of such
activities creates a very "substantial  probability" that some
variances will be granted, increas- ing risk to LEAN members near the


Id. at 68 (citation omitted).


To establish their standing to challenge the non-listing of  UGSTS,
environmental petitioners rely in part on two affida- vits by Michelle
McFaddin Atwell, an environmental regulato- ry affairs consultant.
Based on her review of the digital  database of the Texas Natural
Resources Conservation Com- mission on industrial hazardous waste
shipments, Atwell con- cluded that "tank bottoms" have been shipped
from refineries  to a municipal landfill in Sinton, Texas, and that
other "Type  I" municipal landfills throughout Texas have received
"tank  bottoms" and "oily sludge waste," including landfills in Hous-
ton, Conroe, and Altair. While Atwell never identifies un- leaded
gasoline tanks generating UGSTS, she explains that  standard listing
codes preclude specific identification of "un- leaded gasoline tanks";
generic codes such as "tank bottoms"  and "oily sludge waste" are
employed, and encompass numer- ous wastes, including those generated
by unleaded gasoline  tanks. Atwell notes that while "Class I
industrial, solid  waste" generally is supposed to be shipped to "a
permitted,  Class I industrial waste landfill rather than a Type I,
munici- pal landfill," exemptions from this rule are routinely granted
 in Texas with respect to those industrial wastes not listed as 
hazardous, such as UGSTS, and the state conservation com- mission
"rarely if ever track[s] the volumes of waste that are  actually
shipped to Type I landfills under these case-by-case  requests."


Although the environmental petitioners have identified  landfills that
have a substantial probability of receiving such  shipments, see LEAN,
172 F.3d at 68, namely, Type I munici- pal landfills likely to receive
wastes within categories that  include UGSTS, they have failed to
establish either a substan-


tial probability that the shipments to these identified landfills 
contain UGSTS, or a link between such deposits and the  specific harms
alleged by their members. See, e.g., Laidlaw,  120 S. Ct. at 704;
Lujan, 504 U.S. at 560-61; LEAN I, 172  F.3d at 68. As to the former,
environmental petitioners do  not present, for example, either expert
opinion that these  landfills are of a class substantially likely to
receive UGSTS- filled shipments or an affidavit that the effects of
UGSTS are  evident in the landfill's groundwater. As to the latter, by
 failing to connect the alleged injuries to UGSTS, the environ- mental
petitioners also have failed to establish a likelihood  that the
injuries alleged will be redressed by a favorable  decision. See,
e.g., Laidlaw, 120 S. Ct. at 704; Lujan, 504  U.S. at 560-61.


Much of the environmental petitioners' standing problem  arises from
the fact that their only affiant who lives in Sinton,  which Atwell
identified as having a landfill likely to receive  UGSTS waste, has
not shown that he was a member of a  petitioner organization at the
time the petition challenging  the rule was filed, and his affidavit
thus is legally insufficient.3  See Petro-Chem. Processing v. EPA, 866
F.2d 433, 437 (D.C.  Cir. 1989). The environmental petitioners' other
affidavits,  involving general concerns about pollution at other
locations,  do not cure the deficiency.


The affidavits of Tommy C. Douglas and H. C. Clark do  indicate that
pollution in the Greens Bayou near Houston may  be linked to waste
from the BFI-McCarty landfill in Houston,  which Atwell also
identifies as among those landfills that  receive "tank bottoms" and
"oil sludge waste," and that  Douglas no longer canoes in the Bayou as
a result of his  concerns about pollution. The problem lies, however,
in the  vagueness of Clark's and Douglas' affidavits. Clark, a geo-
physicist, states that public records at the Texas Natural 




__________

n 3 Herbert H. Coleman's affidavit of August 11, 1999, states that  he
"recently became a member of the Sierra Club," but does not  indicate
that he was a member of the Sierra Club at the time the  petition was
filed. Although API made this point in its brief, the  environmental
petitioners did not submit a responsive affidavit.


Resources Conservation Commission show that contamination  in the
groundwater under and from the BFI landfill in  Houston, including
"petroleum related organic chemicals,"  has migrated into the Greens
Bayou. Douglas, a member of  a petitioner organization who lives in
Houston, states that he  no longer canoes on the Greens Bayou because
he and other  canoers have observed pollution in the Bayou, and
because of  more general concerns about pollution in the Bayou, based
in  part upon his knowledge that "there is a landfill just above  the
location" where he once began a Bayou canoe trip.


While Clark provides a general link between Houston's  BFI landfill and
the Greens Bayou, and Douglas suggests  generally that he is wary of
Bayou pollution, neither affiant  traces the pollution of concern to
UGSTS waste. Clark  refers to "petroleum related organic chemicals,"
but he does  not suggest the current or imminent presence of specific 
chemicals found in UGSTS waste, such as benzene, and none  of Clark's
statements refer to specific wastes generated from  unleaded gasoline
storage tanks. Similarly, Douglas does not  describe the
characteristics of the pollution that he has  observed, thus offering
no basis to discern whether such  pollution, and hence his fears, were
substantially likely to  have been derived, even in part, from
unleaded gasoline  storage tanks. Nor does Douglas suggest that his
general  concerns about current or imminent Bayou pollution, includ-
ing his knowledge that a landfill exists nearby, are linked to  UGSTS
waste, or to wastes with features characteristic of  UGSTS. While it
is hardly necessary to present duplicative  evidence of reasonable
fears that are fairly traceable, as  occurred in Friends of the Earth
v. Gaston Copper Recycling  Corp., 204 F.3d 149, 153, 157-58, 161-62
(4th Cir. 2000) (en  banc), Douglas and Clark establish little more
than that some  types of petroleum-related organic chemicals migrate
from  BFI's Houston landfill to the Greens Bayou, and that Douglas  is
concerned generally about pollution in the Bayou. This is 
insufficient to establish the environmental petitioners' stand- ing
because there is no showing that the specific EPA listing 
determination that they seek would redress Douglas' con-


cerns. See, e.g., Laidlaw, 120 S. Ct. at 704; Lujan, 504 U.S.  at
560-61.


Affiant W. H. Hilton is no more helpful to the environmen- tal
petitioners. He states that he owns property in Wilmer  and in Ellis
County and that municipal landfills "in Texas are  allowed to accept
significant quantities of industrial wastes  including.... Class 1
wastes [such as UGSTS,] even if the  [municipal landfill's] permit
does not so state," but he does  not indicate any current or imminent
harm to himself. To  the contrary, he states that he organized a
successful effort to  halt plans for a new municipal waste landfill in
Wilmer, and  that although at one time he was concerned that his Ellis
 County property might be devalued in view of the potential  expansion
of a local municipal landfill and existing groundwa- ter contamination
at that landfill, a political effort resulted in  a settlement to
better protect the groundwater and his prop- erty. Hilton also states
that a Chevron storage tank leaked  on land adjacent to land belonging
to his mother-in-law's  estate, of which Hilton is co-executor, and
that wells had to be  drilled on the estate's land to remedy the
resulting water  contamination, but Hilton does not identify the
circumstances  surrounding the leak, including whether it involved
landfilled  unleaded gasoline tanks or whether any harms suffered by 
the estate are current or imminent, and hence remediable.4  See, e.g.,
Laidlaw, 120 S. Ct. at 704; Lujan, 504 U.S. at 560- 61.


Therefore, in addition to having failed to show the existence  or
imminent existence of unleaded gasoline storage tanks in  the
identified Type I landfills, the environmental petitioners 




__________

n 4 We need not decide the question of executor standing. Al- though
executors are granted standing to sue on behalf of the  deceased owner
of the relevant estate, see, e.g., Nat'l Taxpayers  Union, Inc. v.
United States, 68 F.3d 1428, 1435 (D.C. Cir. 1995);  Amato v. Wilentz,
952 F.2d 742, 751 (3d Cir. 1991), such standing  generally is based
upon a vicarious, third-party representation  theory. In the Matter of
Oil Spill, 954 F.2d 1279, 1319 (7th Cir.  1992). Whether such
third-party standing could establish associa- tional standing for an
organization of which the third party is a  member is an open question
in this circuit.


fail to trace any harm to their members that flows from the  presence
of UGSTS in waste streams from the landfills, and  thus to establish
that their members' concerns are redressa- ble through the listings
sought by the environmental petition- ers. Because the environmental
petitioners have not demon- strated an injury to any of their members
that is both  traceable to EPA's non-listing decision and redressable
by  this court, we dismiss the UGSTS portion of their petition for 
lack of jurisdiction. See Laidlaw, 120 S. Ct. at 704; Lujan,  504 U.S.
at 560-61; LEAN I, 172 F.3d at 68.


B. Coking process exemption: notice and comment claim


Similar deficiencies exist regarding the environmental peti- tioners'
challenge under the notice and comment requirement  of the
Administrative Procedure Act, 5 U.S.C. s 553(b) & (c),  to EPA's
decision not to regulate the solid wastes inserted  into the coking
process, particularly those used in coke  quenching.5 EPA exempted
from regulation those oil-bearing  hazardous secondary wastes inserted
into the coking process,  noting in its final rule that such insertion
generally occurs  during coke quenching rather than in the
conventional coking  process. The environmental petitioners challenge
this ex- emption on the ground that EPA failed to provide adequate 
notice and opportunity for comment because EPA focused on  coke
quenching only after the initial notice and comment  period had
closed. We do not address this contention be- cause the environmental
petitioners have failed to establish a  substantial probability that
their affiants will be exposed to  coke product quenched with


The environmental petitioners base their standing to raise  this
contention on the affidavits of Zelda Champion, Frank 




__________

n 5 "Coking," the process through which coke is produced, con- sists of
two primary stages. In the first, or conventional coking  stage, heavy
oil bearing feedstocks are placed into a coke drum and  heated at high
temperatures, thus breaking the long-chain hydro- carbon molecules
found in the feedstocks, and ultimately producing  coke. The second,
or "coke quenching" stage, involves the injection  of water into the
coke drum to quench and cool the coke.


Gordon, and Dr. Charles Lamb. The Champion and Gordon  affidavits show
that members of petitioner organizations are  exposed to coke product
generally, including "fines" (i.e., tiny  coke particles). Both
affiants state that they live near refin- eries or coke storage sites,
have observed the storage and  transportation of coke at such sites,
believe that such storage  and transportation is inadequately
controlled, and have wit- nessed the release and windblown carriage of
coke product  and fines from these sites. They also state that they
have  had such product and fines tested to confirm their identity as 
petroleum coke dust.6 While these affidavits demonstrate  exposure by
members of environmental petitioners' organiza- tions to coke product
and fines, neither Champion or Gordon  avers that the coke product and
fines to which they are  exposed are generated by a coking process
into which hazard- ous secondary materials are inserted, or are
substantially  likely to be inserted.


As to the coking process itself, the affidavit of Dr. Charles  Lamb
establishes only that the quenching of coke in waste  increases the
toxic nature of such coke, and that "the dust  from such coke [would
contain] increased levels of toxic  contaminants." Attached to his
affidavit is a report deriving  estimates of coke contamination levels
that would be expected  from the use of specific refinery wastes in
coke quenching.  Dr. Lamb states that his study showed that "there are
 refinery wastes which contain [polynuclear aromatics] that  would
deposit on the surface of coke particles if they were  used for coke
quenching," and concludes that "[i]t is logical  that these
contaminants would disproportionately partition to  the finer coke
particles ... [and that] coke dust emitted from  the coke mass would
have even higher concentrations of 




__________

n 6 It is unclear whether Champion was a member of the Sierra  Club at
the time the petition was filed, and thus eligible to provide 
standing for the environmental petitioners. However, the affidavit  by
Gordon, who was a member of petitioner Citizens for a Better 
Environment when the petition was filed, is in relevant parts 
cumulative of Champion's affidavit except as to the location of the 
facilities each has identified, for Gordon lives in Pittsburgh,
Califor- nia, while Champion lives in Corpus Christi, Texas.


contaminants than indicated previously." But the report  notes that
"[a] site specific risk assessment would require  actual data of
emission rates and ambient air concentra- tions...."


In sum, the environmental petitioners' affidavits establish  at most
that the insertion of hazardous wastes into the  coking process is
potentially unhealthy and environmentally  unsound, and that coke
product and fines from such a pro- cess are likewise unhealthy and
environmentally unsound.  What is missing is an averment that such
insertion occurs, or  is substantially likely to occur, at the
facilities that produce  the coke complained of by affiants Champion
or Gordon. It  is true that Dr. Lamb suggests that there is an
economic  incentive for coke producers to avail themselves of EPA's 
exemption and quench coke in hazardous waste, noting that  "[w]hile
there may be some recovery of fuel values, the  overriding incentive
for using refinery wastes for coke  quenching is to avoid the cost of
waste disposal. The coke  product can be significantly degraded by
waste contaminants  added in the quenching step." Such a generalized
state- ment, however, is insufficient to demonstrate a substantial 
probability that the specific coke product and fines to which  members
of environmental petitioners' organizations are ex- posed will be
quenched in hazardous waste. While Laidlaw  may not require very much
to constitute a concrete and  particularized harm, 120 S. Ct. at
706-07, more is required  than the vague statement proffered here. In
Florida Audu- bon, the court rejected the argument that a tax
incentive to  produce a fuel derived from ethanol was substantially
likely  to generate increased production of ethanol-producing crops, 
given the "lengthy chain of conjecture," and thus to generate 
increased agricultural pollution in the specific areas where  members
of the environmental organization might face harm.  Florida Audubon,
94 F.3d at 666. While the causal chain in  Florida Audubon was
significantly more attenuated than  here, Florida Audubon requires
some showing of a substan- tial likelihood that a specific, relevant
actor will avail itself of  a given incentive. Id. at 669. No such


wastes are present, and hence available to quench coke, at  the
specific facilities identified by affiants Champion and  Gordon, or
otherwise to the effect that hazardous waste  quenching currently
exists or is substantially likely to exist  in those facilities
generating coke product to which members  of environmental
petitioners' organizations are exposed.7  Consequently, the
environmental petitioners have failed to  link the practices
complained of to alleged harms or immi- nent harms to their members,
and thus have failed to estab- lish that they have standing to raise
their coke processing  exemption claim. Accordingly, we dismiss the
coking pro- cess portion of the environmental petitioners' petition
for  lack of jurisdiction. See Laidlaw, 120 S. Ct. at 704; Lujan,  504


C. Wind-blown Coke Product and Fines


Finally, the environmental petitioners seek review of EPA's  decision
to defer a listing determination for coke product and  fines
accidentally released into the air, or otherwise inadver- tently
released, from saleable piles of coke. Unlike the  environmental
petitioners' coke quenching challenge, their  airborne coke product
and fines contention does not relate to  the manner in which coke is
processed, or to the materials to  which the coke is exposed in
processing. Rather, this conten- tion concerns the non-listing of
those product and fines  released from saleable piles of coke,
regardless of how the  coke is processed. As noted in subpart (B),
affiants Champi- on and Gordon establish a link between coke product
and  fines emissions generally, and their exposure to such product 
and fines. Nonetheless, environmental petitioners face an- other
jurisdictional obstacle: the determination they chal- lenge is a




__________

n 7 In a supplemental filing on April 5, 2000, the environmental 
petitioners repeat that hazardous wastes could, under EPA's rule,  be
inserted into the coking process but do not state that this occurs  or
is substantially likely to occur at a location referred to in their 
affidavits, nor that such information cannot be obtained.


Under RCRA s 7006(a), the court has jurisdiction to re- view three
types of actions by EPA: promulgation of final  regulations,
promulgation of requirements, and the denial of  petitions for the
promulgation, amendment or repeal of  RCRA regulations. See American
Portland Cement Alliance  v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996);
42 U.S.C.  s 6976(a) (1995). In determining whether an agency has 
taken final action the court has looked to a variety of factors, 
"including the agency's own characterization of its action, 
publication or lack thereof in the Federal Register or Code of 
Federal Regulations, and whether the action has a binding  effect on
the rights of parties, and on the agency's ability to  exercise
discretion in the future." American Portland Ce- ment, 101 F.3d at
776. A decision by an agency to defer  taking action is not a final
action reviewable by the court. As  the court explained in concluding
that it lacked jurisdiction  under RCRA to review certain regulatory


An announcement of an agency's intent to establish law  and policy in
future is not the equivalent of the actual  promulgation of a final
regulation. EPA described in  detail the areas that will require
further analysis before  final regulations can be promulgated,
signaling that the  Regulatory Determination was not intended as the
last  word on the subject....


American Portland Cement, 101 F.3d at 777 (citation omit- ted).


The environmental petitioners acknowledge in their initial  brief that
EPA's failure to list product and fines from coke  piles is a
"deferral" of a listing determination, but contend  nonetheless that
it is reviewable under RCRA because EPA  lacked discretion to defer
this determination under a consent  decree entered in Browner v. EDF,
Civ. No. 89-0598 (D.D.C.  Dec. 9, 1994). The environmental
petitioners' position has  three shortcomings.8 First, EPA's decision




__________

n 8 The environmental petitioners attempted, in their reply brief  and
at oral argument, to recast their position to be that EPA's  deferral
effectively constitutes a final rule insofar as EPA lacked  discretion
to defer ruling under both the Browner consent decree 


of the characteristics of final agency action. In explaining its 
decision on those product and fines inadvertently discarded  from
saleable piles of coke, EPA stated it would "defer"  making a listing
determination because the Browner consent  decree did not require such
a determination and no other  factors made such a determination
immediately necessary.  Final Rule, 63 Fed. Reg. at 42,161. A decision
to defer has  no binding effect on the parties or on EPA's ability to
issue a  ruling in the future. American Portland Cement, 101 F.3d at 


Second, to the extent that the environmental petitioners  challenge
EPA's interpretation of the consent decree, this  court lacks
jurisdiction; an action to enforce the consent  decree must be brought
in the district court that issued the  decree, see 42 U.S.C. s
6972(a); Beckett v. Air Line Pilots  Ass'n, 995 F.2d 280, 285-86 (D.C.
Cir. 1993); Figures v. Bd.  of Public Utilities of Kansas City, 967
F.2d 357, 361 (10th  Cir. 1992), even assuming that the environmental
petitioners  have standing to bring such an enforcement action (for
the  Environmental Defense Fund was the sole environmental 
organization in the Browner case).9


Accordingly, because the court lacks jurisdiction to consid- er the
environmental petitioners' contention regarding EPA's  decision to
defer listing coke product and fines, we dismiss  that portion of
their petition for review as well.




__________

n and 42 U.S.C. s 6291(e)(2). Under either characterization, the 
environmental petitioners' contention fails for the same reasons. 
Furthermore, counsel for the environmental petitioners stated at  oral
argument that they are not contending that jurisdiction should  be
taken on the basis of unreasonable agency delay. See Telecom-
munications Research and Action Center v. FCC, 750 F.2d 70, 76  (D.C.


9 The statute on which the environmental petitioners rely for a 
"congressional mandate" for an EPA listing determination on coke 
product and fines, 42 U.S.C. s 6291(e)(2), underlies the Browner 
consent decree litigation with respect to coke product.