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


ASSN BATTERY RECYCL

v.

EPA


98-1368a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: These are consolidated petitions  for judicial
review of Environmental Protection Agency regu- lations 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 collec- tively 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 stan- dards
for a specific category of hazardous waste; and with  EPA's test for
determining whether certain wastes are haz- ardous. Our opinion is in
three parts. The first part decides  whether EPA properly defined
"solid waste." We are unani- mous that it did not. The second part


mously, 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.
 s 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 produc- tion; and more than ninety
percent of the nation's productive  capacity of basic industrial


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. s
6903(27). Solid wastes are "con- sidered 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. s 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. s 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.  s 261.2(a)(1). It
then defines "discarded material" to mean  "any material which is
Abandoned ... or Recycled, as ex- plained in paragraph (c) of this
section...." Id.  s 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 dispos-
al"; 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. s 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. s 261.2(c)(3) &  tbl.1 (1996). Reclaimed
sludges and by-products were classi- fied 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. s 261.2(c)(3) &
tbl.1 (1996). Re- claimed 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


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. s 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 CFR  261.4(a)(17)).[1]




__________

n 1 The final rule published in the Federal Register incorrectly  cited
s 261.4(a)(15). See 63 Fed. Reg. 28,556, 28,636 (1998). EPA  later
corrected its mistake. See 64 Fed. Reg. 25,408, 25,408 (1999).


Id. The new s 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 classi- fied as solid waste. We have
trouble making sense of these  two provisions. The first provision (s
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 s 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 s 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. s 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 s 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. s 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 set aside an EPA rule
regulating secondary  "materials reused within an ongoing industrial
process," id. at  1182, because the materials were "neither disposed


The holding in AMC I thus appears to answer the question  we have
before us. See Chevron U.S.A. Inc. vs. Natural  Resources Defense
Council, Inc., 467 U.S. 837 (1984). The  Supreme Court has a rule:
"Once we have determined a  statute's clear meaning, we adhere to that
determination  under the doctrine of stare decisis, and we judge an
agency's  later interpretation of the statute against our prior
determi- nation of the statute's meaning." Maislin Indus., U.S., Inc. 
v. Primary Steel, Inc., 497 U.S. 116, 131 (1990); see also  Lechmere,
Inc. v. NLRB, 502 U.S. 527, 536-37 (1992). We  too follow stare
decisis. The complication, for an administra- tive agency, of
conflicting interpretations of the same statute  from different
circuits is not present. The D.C. Circuit is the  exclusive venue for
pre-enforcement judicial review of RCRA  regulations. See 42 U.S.C. s
6976(a)(1). And so, our inter- pretation of RCRA binds not only this


EPA nevertheless insists that RCRA may be applied to  materials that
are not disposed of, abandoned, or thrown  away, but are destined for
reuse in an on-going industrial  process. The argument is that AMC I
was a narrow decision,  and that "subsequent judicial opinions have
sharply limited 


the scope of AMC I." 63 Fed. Reg. at 28,580. These later  decisions,
according to EPA, absolutely bar the agency from  treating secondary
materials as "discarded" (42 U.S.C.  s 6903(27)) if and only if
"reclamation is continuous in the  sense that there is no interdiction
in time--i.e. materials  moving from one step of a recovery process to
another  without a break in the process, as for storage." 63 Fed. Reg.
 at 28,581. We believe EPA misapprehends the law of the  circuit.


As to AMC I, EPA supports its interpretation of the  decision on the
basis that the court twice used the phrase  "immediate reuse":


Here, Congress defined "solid waste" as "discarded ma- terial." The
ordinary, plain-English meaning of the word  "discarded" is "disposed
of," "thrown away" or "aban- doned." Encompassing materials retained
for immediate  reuse within the scope of "discarded" strains, to say
the  least, the everyday usage of that term.


* * *


The question we face, then, is whether ... Congress was  using the term
"discarded" in its ordinary sense--"dis- posed of" or "abandoned"--or
whether Congress was  using it in a much more open-ended way, so as to
 encompass materials no longer useful in their original  capacity
though destined for immediate reuse in another  phase of the
industry's ongoing production process.


824 F.2d at 1183-84, 1185. EPA reads, or rather misreads,  these
passages to mean that it may treat secondary materials  as "discarded"
whenever they leave the production process  and are stored for any
length of time.


For one thing, "the language of an opinion is not always to  be parsed
as though we were dealing with language of a  statute," Reiter v.
Sonotone Corp., 442 U.S. 330, 341 (1979)-- an admonition the AMC I
court itself repeated. See 824 F.2d  at 1183 n.6 (quoting Reiter, 442
U.S. at 341); see also St.  Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993) ("[W]e 


think it generally undesirable, where holdings of the Court  are not at
issue, to dissect the sentences of the United States  Reports as
though they were the United States Code."). Yet  EPA treats "immediate
reuse" as if these were statutory  terms in need of a regulatory
definition. See, e.g., 63 Fed.  Reg. at 28,582-83. EPA supplies the
definition: immediate  reuse is "continuous recirculation of secondary
materials back  into recovery processes without prior storage" unless
the  storage for later recycling complies with the conditions EPA 
sets forth in the new s 261.4(a)(17) of its regulations. 63  Fed. Reg.
at 28,580-83. Of course, this thoroughly ignores  the AMC I court's
holding that, under RCRA, material must  be thrown away or abandoned
before EPA may consider it to  be "waste." As we have said, material
stored for recycling is  plainly not in that category.


For another thing, in the two passages quoted above, the  word
"immediate" cannot mean what EPA thinks. The court  wrote of secondary
material "retained"--held for a time--and  "destined"--denoting the
future--for "immediate reuse."  This more than suggests that the court
had in mind materials  that were being held or stored for later
recycling or reuse.  EPA assumes, without saying why, that when the
AMC I  court wrote "immediate" in these sentences it meant "at  once."
But the word "immediate" has another common  meaning--"direct," as in
"my immediate superior" or "the  immediate cause of the accident." It
is clear to us that this is  what the AMC I court intended. It is
clear because retaining  signifies holding onto, keeping, storing. And
so retaining, on  the one hand, and reusing at once, on the other
hand, sounds  like a physical impossibility. It is clear because the
AMC I  court stressed, again and again, that it was interpreting 
"discarded" to mean what it ordinarily means. To say that  when
something is saved it is thrown away is an extraordi- nary distortion
of the English language. Yet that is where  EPA's definition leads. It
is also clear that the AMC I court  intended "direct" when it wrote
"immediate" because EPA  never even argued that materials sent back
into the produc- tion process, with no intermediate storage, were
"waste."  EPA never made the argument because its rule at the time 


did not consider such secondary materials to be discarded  (and thus
"solid waste" under RCRA). EPA's AMC I brief  stated: "when secondary
materials are recycled by being  returned directly (without undergoing
significant reprocess- ing) for use as feedstock to the process which
generated  them, the activity often is like an on-going production
process.  Secondary materials being recycled in this way--referred to 
as a 'closed-loop' process--therefore are not defined as solid 
wastes." Brief for Respondent at 11 (citing 40 C.F.R.  s
261.2(e)(iii)(1986)), AMC I.


That the "immediate reuse" phrase was not mentioned in  the critical
portions of the AMC I opinion containing the  court's holding is still
another reason for rejecting EPA's  position. The court stated: "In
sum, our analysis of the  statute reveals clear Congressional intent
to extend EPA's  authority only to materials that are truly discarded,
disposed  of, thrown away, or abandoned," 824 F.2d at 1190; and 
"[t]hese materials have not yet become part of the waste  disposal
problem; rather, they are destined for beneficial  reuse or recycling
in a continuous process by the generating  industry itself," id. at
1186 (italics in original); and "we are  persuaded that by regulating
in-process secondary materials,  EPA has acted in contravention of
Congress' intent," id. at  1193. Nothing here about saved materials
being transformed  into discarded materials unless they are placed
back into the  production process forthwith.


Still further, the AMC I court thought that EPA's final rule  illegally
regulated the following: "valuable metal-bearing and  mineral-bearing
dusts are often released in processing a  particular metal. The mining
facility typically recaptures,  recycles, and reuses these dusts,
frequently in production  processes different from the one from which
the dusts were  originally emitted." Id. at 1181. The court must have
been  referring to the following illustration provided in the mining 
industry's brief:


If, for example, "an emission control dust from a primary  zinc
smelting furnace" is not returned to the zinc produc-


tion process but instead to on-site "cadmium recovery  operations," it
is classified as solid waste.


Brief for Petitioner American Mining Congress at 20 (citing  50 Fed.
Reg. 614, 640 (1985)), AMC I. In this example, the  dust is not placed
back into the production process at once,  and yet the AMC I court
held that EPA had no authority to  regulate the dust as solid waste
because it had not been  thrown away or otherwise discarded. To state
the matter  more generally, the court in AMC I set aside EPA's rule 
because secondary materials which are treated prior to recy- cling
cannot be considered discarded if they are "reused  within an ongoing
industrial process." 824 F. 2d at 1182.2


We have written enough to explain why we disagree with  EPA's reading
of AMC I and why the Phase IV Rule  contradicts that decision. Later
cases in this court do not  limit AMC I, as EPA supposes. American
Petroleum Insti- tute v. EPA, 906 F.2d 729 (D.C. Cir. 1990) ("API"),
was, as 




__________

n 2 An example from the rulemaking record in this case illustrates  how
temporary storage can be a necessary phase of reclaiming  mineral
processing secondary material. The Cyprus Amax Miner- als Company
commented on EPA's proposed 48 hour rule, which  would have defined
any such secondary material stored for more  than 48 hours as solid
waste, see 62 Fed. Reg. 26,041, 26,051  (1997)--a more limited
assertion of authority than the current rule,  which requires no
minimum time period of storage. See Comments  of Cyprus Amax Minerals
Company: Land Disposal Restrictions  Phase IV, at J.A. 839. At its
Miami smelter, Cyprus recycles  reverts, a mixture of "converter slag
and matte which has frozen to  the wall and bottom of a transfer
ladle." Id. at 864. To accomplish  this, the reverts must be removed
from the production process.  "This frozen layer of material (reverts)
is physically knocked loose  from the ladle once it reaches a
thickness that significantly reduces  the ladle transfer capacity. The
freshly removed revert's tempera- ture may still be as much as
1800-1900øF, and the large mass of  material will require many hours
to cool sufficiently to allow equip- ment to move it to the crushing
and sizing operations. The reverts  inventory is constantly in process
of being reused." Id. The  inventory is not always equal to demand, so
some reverts, after the  crushing and sizing, remain in that area


EPA acknowledged in the Phase IV rulemaking, at "the end  of the
[jurisdictional] continuum ... where EPA's authority  is most
certain." 63 Fed. Reg. at 28,580. In that case, the  Natural Resources
Defense Council challenged EPA's deci- sion not to regulate K061 slag.
It was "undisputed" that  K061, an individually listed, zinc-bearing
hazardous waste  generated from air pollution control equipment in
steel indus- try electric furnaces, see 906 F.2d at 734, was "a 'solid
waste'  when it le[ft] the electric furnace in which it [was]
produced."  Id. at 740. But EPA, citing AMC I, disavowed authority
over  K061 after it had been transported to a metals reclamation 
facility. Hence, slag produced when K061 went through a  smelting
furnace at the reclamation facility was not automati- cally classified
as a solid waste.3 See id. at 738-39; 53 Fed.  Reg. 11,742, 11,753


The court rejected EPA's view that AMC I precluded  classifying K061
slag as solid waste. The material was sent  to reclamation facilities
not as part of an " 'ongoing manufac- turing or industrial process'
within 'the generating industry,'  but as part of a mandatory waste
treatment plan prescribed  by EPA." 906 F.2d at 741. API thus involved
the taking of  solid waste from the steel industry and reclaiming it
within  another industry, typically primary zinc smelting or some 
other type of secondary metal recovery. See 53 Fed. Reg. at  11,752.
The API decision is entirely consistent with AMC I.  In fact the AMC I
court recognized EPA's authority over  comparable secondary materials:
"Oil recyclers typically col- lect discarded used oils, distill them,
and sell the resulting  material for use as fuel in boilers.
Regulation of those activi- ties is likewise consistent with an
everyday reading of the  term 'discarded.' It is only when EPA
attempts to extend  the scope of that provision to include the
recycling of undis- carded oils at petroleum refineries that conflict
occurs." 824  F.2d at 1187 n.14, cited in API, 906 F.2d at 741 n.16.




__________

n 3 Under the "derived from" rule, "once EPA determines that a 
particular substance is a hazardous waste, the agency continues to 
treat as a hazardous waste any product 'derived from' that sub- stance
in the course of waste treatment." 906 F.2d at 738 (citing 40  C.F.R.
s 261.3(c)(2)).


American Mining Congress v. EPA, 907 F.2d 1179 (D.C.  Cir. 1990) ("AMC
II"), the other case featured in EPA's  argument, did not disturb AMC
I's interpretation of "discard- ed." Industry groups contested EPA's
authority to regulate  three specifically listed hazardous
wastes--K064 (acid plant  blowdown sludge from primary copper
production); K065  (surface impoundment solids from primary lead
smelting);  and K066 (wastewater treatment sludge from primary zinc 
production). See 907 F.2d at 1183, 1185. The court ex- plained that
copper, lead and zinc smelting operations "pro- duce large volumes of
wastewater that the smelting company  must treat before discharging
it. Many smelting operations  use surface impoundments to collect,
treat, and dispose of the  wastewater." Id. at 1185-86. Solids in the
wastewater set- tle. Petitioners claimed that the resulting sludge
"may at  some time in the future be reclaimed" and therefore could not
 be considered solid waste because they had not discarded it.  Id. at
1186. The key word in the passage just quoted is  "may." Could EPA
consider this secondary material--mate- rial that may in the future be
reclaimed--to be discarded?  The AMC II court thought the answer to
this "precise  question" was not clear from RCRA and so it deferred to


EPA regulates the speculative accumulation of secondary  materials
through 40 C.F.R. s 261.2(c)(4), a provision not  challenged in this
case, and not challenged in AMC II. This  regulation, in itself,
supported EPA's viewing the three types  of sludge in AMC II as waste.
EPA, however, dismissed the  language in the AMC II opinion indicating
that the court had  before it speculative accumulation. According to
EPA, AMC  II did not involve speculative accumulation because each 
sludge "was actually recycled 100 percent, not stored with the 
expectation of recycling. 50 FR at 40292, 40296; Brief of  Petitioner
American Mining Congress in AMC II (filed March  30, 1990) pp. 18,
29." 63 Fed. Reg. at 28,581. EPA is flatly  wrong about this. As to
K064 (acid plant blowdown sludge  from primary copper production),
only 31 percent was eventu- ally recycled throughout the industry, as
the AMC II peti- tioners conceded. See 50 Fed. Reg. at 40,296; Final


Consolidated Petitioners at 26, AMC II. As to K066 (waste- water
treatment sludge from primary zinc production), recy- cling totaled 69
percent nationwide. See 50 Fed. Reg. at  40,296; Final Brief of
Consolidated Petitioners at 13 n.15,  AMC II. As to K066 (surface
impoundment solids from  primary lead smelting), EPA reported 100
percent recycling  in the past but--and the "but" is critical--lead
smelting  plants were now storing this material for years and "due to 
declining lead demands, there is a strong potential that these 
sludges may not be recycled." 50 Fed. Reg. at 40,297.


Even if we credited EPA's mistaken notion about AMC II,  the court's
decision there was not at odds with AMC I. The  best authority for
this is EPA itself. In defense of its listing  of the materials in AMC
II, the agency argued that it had  acted consistently with AMC I's
holding that "discarded," as  used in RCRA, carries its ordinary,
everyday meaning.4  Here is the heart of EPA's argument in AMC II:


The record demonstrates that the sludges in question  are managed in
wastewater treatment surface impound- ments, which are within the
definition of solid waste.  Moreover, the sludges exhibit sufficient
elements of dis- card to be solid wastes, even if they may be, in
part, later  reclaimed.


* * *


EPA acted consistently with AMC in assessing wheth- er each specific
sludge at issue here was, considering all  facts and indicia,
discarded....


Wastewater treatment surface impoundments are not  part of an ongoing,
continuous primary smelting produc- tion process. The impoundments
receive process waste- water, from which sludges settle or precipitate
out.




__________

n 4 RCRA jurisdiction over these types of sludge may have existed  even
without resort to the "discarded material" term in the solid  waste
definition. Congress defined solid waste to include "any ...  sludge
from a waste treatment plant," 42 U.S.C. s 6903(27), a point  EPA made
in its AMC II brief. See Brief for Respondent at 15,  AMC II.


Brief for Respondent at 12, 19-20 (footnotes omitted), AMC  II. The AMC
II court agreed with this argument: "Nothing  in AMC prevents the
agency from treating as 'discarded' the  wastes at issue in this case,
which are managed in land  disposal units that are part of waste
treatment systems." 907  F.2d at 1186 (italics in original). The point
of AMC II, and  for that matter API, is that once material qualifies
as "solid  waste,"5 something derived from it retains that designation
 even if it might be reclaimed and reused at some future time.  In
contrast, the Phase IV Rule seeks to regulate materials  that are not
a by-product of solid waste, but a direct by- product of industrial


EPA thinks that in light of API and AMC II, "discarded" is  now
ambiguous and thus we should defer to its interpretation.  To accept
EPA's contention would be to conclude that two  later panels of this
court overruled the decision in AMC I that  "discarded" was not
ambiguous. See AMC I, 824 F.2d at  1193. We think nothing of the sort
occurred. A term may be  ambiguous as applied to some situations, but
not as applied to  others. The AMC II court said as much: nothing in
RCRA  "shows the term 'discarded' to be any less ambiguous regard- ing
sludges stored in surface impoundments than it was  regarding the
materials at issue in API." 907 F.2d at 1186.6




__________

n 5 The "solid waste" to which we refer is the wastewater. Under  RCRA
a "solid" waste may be liquid. See 42 U.S.C. s 6903(27).


6 It is true that the AMC II court quoted the "immediate reuse" 
language from AMC I we mentioned earlier. It is also true that the 
AMC II court quoted a good deal more of AMC I, for instance:  "We held
[in AMC I] that the agency could not treat such materials  as solid
wastes, because they 'have not yet become part of the waste  disposal
problem; rather, they are destined for beneficial reuse or  recycling
in a continuous process by the generating industry itself.'  [824 F.2d
at 1186]." 907 F.2d at 1186 (italics in original). While  the AMC II
court said that AMC I "concerned only materials that  are 'destined
for immediate reuse in another phase of the industry's  ongoing
production process,' " id. (quoting 824 F.2d at 1185, and  adding
italics), we have already explained why the italicized lan- guage
cannot carry the meaning EPA ascribes to it. See pp. 6-10,  supra.


Some mineral processing secondary materials covered un- der the Phase
IV Rule may not proceed directly to an  ongoing recycling process and
may be analogous to the sludge  in AMC II. The parties have presented
this aspect of the  case in broad abstraction, providing little detail
about the  many processes throughout the industry that generate
residu- al material of the sort EPA is attempting to regulate under 
RCRA.7 At this stage, all we can say with certainty is that at  least
some of the secondary material EPA seeks to regulate  as solid waste
is destined for reuse as part of a continuous  industrial process and
thus is not abandoned or thrown away.  Once again, "by regulating
in-process secondary materials,  EPA has acted in contravention of
Congress' intent," 824  F.2d at 1193, because it has based its
regulation on an  improper interpretation of "discarded" and an
incorrect read- ing of our AMC I decision.


II. Alternative Treatment Standards


A.


Once it is determined that materials are hazardous waste  and thus
subject to RCRA, EPA is required to take several  steps, one of which
is to promulgate regulations prohibiting  land disposal of certain
hazardous wastes. See 42 U.S.C.  s 6924(d), (e) & (g). If a waste
falls under this disposal  restriction, it cannot be disposed of
"unless the waste is  treated so as to minimize the short-term and
long-term  threats to human health and the environment posed by toxic 
and hazardous constituents ... or unless the EPA finds that  no
migration of hazardous constituents from the facility will  occur
after disposal." Chemical Waste Management, Inc. v.  EPA, 976 F.2d 2,
8 (D.C. Cir. 1992) (citing 42 U.S.C. s 6924  (g)(5), (m)). We are
concerned in this portion of the opinion 




__________

n 7 The Phase IV Rule encompasses recycling activities in "all  primary
mineral processing sectors" of which EPA has identified at  least 41.
63 Fed. Reg. at 28,580 (citing EPA, Identification and  Description of
Mineral Processing Sectors and Waste Streams  (1996)).


with the first option--the land disposal restriction ("LDR")  treatment
standards.


EPA originally promulgated technology-based LDR treat- ment standards,
see Hazardous Waste Treatment Council v.  EPA, 886 F.2d 355, 361-66
(D.C. Cir. 1989), usually examin- ing the available treatment data and
requiring use of the  "best demonstrated available technology"
("BDAT"), see 61  Fed. Reg. 18,780, 18,807 (1996). Beginning in 1991,
see 56  Fed. Reg. 55,160, 55,172-77 (1991),8 EPA began to rethink 
whether BDAT standards should apply to all soils containing  hazardous
wastes. While continuing to believe that BDAT  standards are best for
newly-generated wastes, the agency  doubted that this was also true
for wastes generated during  remediation of contaminated soils. See 61
Fed. Reg. 18,780,  18,808 (1996). BDAT standards "create an incentive
to gen- erate less of the affected waste in the first instance." Id. 
This incentive is what EPA desires in the context of newly- generated
wastes, but in the remediation context it serves as  a barrier to
desirable cleanup efforts. See id.


EPA thus proposed, and promulgated in the rule before us,  alternative
treatment standards for soils. Rather than re- quiring BDAT, the
alternative standards allow any treatment  that results in a ninety
percent reduction in the concentration  of hazardous constituents,
unless the ninety percent reduction  would result in a concentration
less than ten times the  Universal Treatment Standard (based on BDAT)
for that  constituent. See 40 C.F.R. s 268.49(c)(1). In that case, the
 concentrations can be reduced only to ten times the Universal 
Treatment Standard. See id. s 268.49(c)(1)(C).




__________

n 8 This first mention of alternative standards was during part of  the
Phase II LDR rulemaking. See 56 Fed. Reg. 55,160, 55,172-77  (1991);
58 Fed. Reg. 48,092, 48,122-33 (1993). The development of  the
alternative standards continued in the Hazardous Waste Identi-
fication Rule for Contaminated Media, see 61 Fed. Reg. 18,780, 
18,783-85, 18,803-13 (1996) and in the Phase IV rule currently  before
this court, see 63 Fed. Reg. 28,556, 28,571-52, 28,609-10  (1998).


The final rule applies solely to soils that are placed "into a  land
disposal unit." See id. s 268.49(a). Four industry  groups
representing electric and gas utilities challenge the  regulation
because it departed from the proposed rules, which  petitioners
contend applied to any "land disposal" of soils.  The practical effect
of this difference is that the alternative  standards do not apply to
soils that are recycled into products  placed on land. See 63 Fed.
Reg. at 28,609. These petition- ers prefer the proposed rule because
in their efforts to clean  up manufactured gas plant sites, they often
recycle contami- nated soils into asphalt, brick, or cement--products
that are  placed on land. Petitioners voice procedural objections to
the  final rule, claiming it violated the notice and comment provi-
sions of the APA, see 5 U.S.C. s 533, and the public partic- ipation
requirements of RCRA, see 42 U.S.C. s 6974(b)(1).  They also argue
that the final rule should be set aside as  "arbitrary and


B.


There is a jurisdictional hurdle to get over. Intervenors 
Environmental Defense Fund and Environmental Technology  Council, but
not EPA, question whether we may hear peti- tioners' challenge to the
Phase IV Rule for something it did  not do--that is, its failure to
apply the alternative treatment  standards to soils that are recycled
into products placed on  land. RCRA gives this court jurisdiction over
"a petition for  review of action of the Administrator in promulgating
any  regulation...." 42 U.S.C. s 6976(a)(1). Our court lacks 
jurisdiction under this provision to hear petitions complaining  that
the "EPA should have promulgated a rule which, up until  now, it has
not promulgated." United Technologies Corp. v.  EPA, 821 F.2d 714,
720-21 (D.C. Cir. 1987); see also Hazard- ous Waste Treatment Council
v. EPA, 861 F.2d 277, 287  (D.C. Cir. 1988). In United Technologies, a
petitioner chal- lenged an EPA regulation because it did not
promulgate  groundwater monitoring regulations for solid (but not
hazard- ous) waste management units. See 821 F.2d at 721. EPA 


had not yet acted either to adopt or to reject proposed  regulations.
See id.


In the Phase IV final rule, however, EPA acted. It "stud- ied
carefully" whether to apply alternative LDR standards to  soils that
are recycled into products placed on land. 63 Fed.  Reg. at 28,575.
While the new regulations do not apply to  soils that are recycled
into products placed on land, the  jurisdictional provision does not
limit review to the actual  regulations. It allows for review "of
action of the Adminis- trator in promulgating any regulation," 42
U.S.C.  s 6976(a)(1) (italics added). When EPA considers and rejects 
a proposed regulation it has acted. Unlike the United Tech- nologies
situation, there are standards by which to judge  EPA's action because
the agency selected what, in its view, is  the "appropriate method of
ascertaining compliance with stat- utory and regulatory norms." 821


C.


The Administrative Procedure Act requires that a "[g]ener- al notice of
proposed rule making shall be published in the  Federal Register" and
"[t]he notice shall include ... either  the terms or substance of the
proposed rule or a description  of the subjects and issues involved."
5 U.S.C. s 553(b).9  This notice then allows interested persons to
comment on the  proposed rules. See id. s 553(c). EPA published
notices of  proposed rulemaking on alternative LDR standards for soil
in  1991, 1993, and 1996. See 56 Fed. Reg. 55,160, 55,172-77  (1991);
58 Fed. Reg. 48,092 (1993); 61 Fed. Reg. at 18,813.  Affected
industries thus had numerous opportunities to com- ment about whether
the alternative LDR standards should, or 




__________

n 9 Petitioners also rely on the public participation provisions of 
RCRA. See 42 U.S.C. s 6974(b)(1). They note, however, that the  APA
provides "greater specificity" of notice requirements, see Brief  of
Petitioners Edison Electric Institute et al. on LDR Treatment 
Standard Issues at 14, and support their argument only with  reference
to APA case law. They do not explain how the RCRA  provision creates
additional notice requirements relevant to this  petition.


should not, apply to their processes. Petitioners did just  that. But
they now contend that they were not given proper  notice of the final
rule, which, as discussed above, applied  only to soils placed in land
disposal units.


Petitioners are correct that the final Phase IV Rule is not  exactly
the same as the proposed rules. But notice require- ments do not
require that the final rule be an exact replica- tion of the proposed
rule. If that rigidity were required, the  purpose of notice and
comment--to allow an agency to recon- sider, and sometimes change, its
proposal based on the com- ments of affected persons--would be
undermined. Agencies  would either refuse to make changes in response
to comments  or be forced into perpetual cycles of new notice and
comment  periods. Recognizing this, we hold that notice and comment 
requirements are met when an agency issues rules "that do  not exactly
coincide with the proposed rule so long as the  final rule is the
'logical outgrowth' of the proposed rule."  Fertilizer Inst. v. EPA,
935 F.2d 1303, 1311 (D.C. Cir. 1991).  "[T]he key focus is on whether
the purposes of notice and  comment have been adequately served....
[A] final rule will  be deemed to be the logical outgrowth of a
proposed rule if a  new round of notice and comment would not provide
commen- ters with 'their first occasion to offer new and different 
criticisms which the agency might find convincing.' " Id.  (quoting
United Steelworkers of America v. Marshall, 647  F.2d 1189, 1225 (D.C.
Cir. 1980) (quoting BASF Wyandotte  Corp. v. Costle, 598 F.2d 637, 642


The Phase IV final rule on alternative LDR treatment  standards is a
logical outgrowth of the proposed rules. EPA  proposed allowing
alternative standards for remediated soils.  The proposal was just
that--a proposal. One would logically  conclude that EPA could have
ended up allowing alternative  standards for all soils as the proposal
suggested, for no soils,  or--as it turned out--for some soils.
Petitioners submitted  comments on why remediation activities
involving soils recy- cled into products placed on land should be
subject to the  alternative standards. EPA responded to those
comments.  Petitioners say that they "would have submitted comments 
demonstrating that utility companies have engaged in such 


recycling under regulatory oversight...." Brief of Petition- er Edison
Electric et al. on LDR Treatment Standard Issues  at 21. They think
this would have been convincing because  "[w]hat ultimately seemed to
be dispositive was EPA's belief  that recycling is not subject to
regulatory supervision." Id.  (citing 63 Fed. Reg. at 28,610). Not so.
In 1996, EPA  suggested that it might limit the alternative treatment
stan- dards to remediation activities subject to regulatory over-
sight: "[S]hould the Agency adopt soil treatment standards  that are
adjusted to account for the lack of State or Agency  oversight over
how they are administered?" See 61 Fed.  Reg. at 18,813. This notified
affected persons that they  should submit information discussing the
regulatory oversight  of any remediation activities at issue.


The short of the matter is that petitioners have identified  no
relevant information they might have supplied had they  anticipated
EPA's final rule. We therefore hold that EPA  complied with the notice
and comment requirements.


D.


This brings us to the arbitrary and capricious challenge.  EPA
concluded that soils recycled into products placed on  land should
continue to be treated with the "best treatment  available" because
these products "can be placed virtually  anywhere, compounding
potential release mechanisms, expo- sure pathways, and human and
environmental receptors." 63  Fed. Reg. at 28,610. The agency stressed
the "uncertainties  posed by this method of land disposal" in refusing
to apply  the alternative LDR standards. See id. at 28,609-10.


Petitioners claim this "uncertainty" is not a rational basis  for
agency decisionmaking and that EPA did not adequately  support its
environmental concerns with recycled soils placed  on land. There is
nothing to this. EPA decided not to apply  alternative standards
unless it was certain the new standards  would result in safe
disposal. "[N]othing [in RCRA] requires  the Administrator to
determine that a method of land disposal  is not safe before
prohibiting it. Rather, the statute com- mands the Administrator to


tions unless he has made an affirmative determination of  safety."
Natural Resources Defense Council, Inc. v. EPA,  907 F.2d 1146, 1153
(D.C. Cir. 1990). EPA applies a similar  presumption in granting
variances from treatment standards.  See 40 C.F.R. s 268.44. EPA also
sufficiently supported its  view that environmental risks exist when
soils are recycled  into products placed on land. See 63 Fed. Reg. at
28,610  (citing 53 Fed. Reg. at 31,197-98); J.A. 2131-32. It engaged 
in reasoned decisionmaking in finding that contaminated soils  placed
on the ground as asphalt or cement pose greater  environmental risks
than similar soils placed in land disposal  units.


* * *


EPA must define "solid waste" in accordance with this  opinion. The
parenthetical--"(except as provided under 40  CFR 261.4(a)(17))"--to
the second sentence of 40 C.F.R.  s 261.2(c)(3), through which EPA
purportedly expanded its  regulation of mineral processing secondary
materials, is  therefore set aside.


The petitions challenging the alternative treatment stan- dards for
soils are denied.


So ordered.


Ginsburg, Circuit Judge: A solid waste not specifically  listed as
"hazardous" by the EPA is nonetheless deemed  "hazardous" if it
exhibits one or more of four characteristics:  ignitability,
corrosivity, reactivity, or toxicity. 40 C.F.R.  ss 261.20, 261.21,
261.22, 261.23 & 261.24. In order to deter- mine whether a solid waste
is toxic, the EPA has adopted a  test called the Toxicity
Characteristic Leaching Procedure  (TCLP). 40 C.F.R. s 261.24. The EPA
created the TCLP,  and its predecessor the Extraction Procedure (EP),
as part of  its response to the command of the Congress to "promulgate
 regulations identifying the characteristics of hazardous  waste." 42
U.S.C. s 6921(b)(1); see also 51 Fed. Reg. 21,653  (describing
evolution of EP and TCLP). Because the Con- gress had defined
hazardous waste to include any solid waste  that may "pose a
substantial present or potential hazard to  human health or the
environment when improperly treated,  stored, transported, or disposed
of, or otherwise managed,"  42 U.S.C. s 6903(5)(B), the EPA set out to
design a test that  would determine whether a solid waste would pose a
risk to  human health or the environment if it was mismanaged. See  55
Fed. Reg. 11,806/1. Rejecting as impractical an approach  in which the
test for toxicity would vary depending upon the  manner in which a
waste was actually disposed of, see 55 Fed.  Reg. 11,807, the EPA
instead decided to adopt a test designed  to simulate the disposal
practice that is the most dangerous to  human health and the
environment and yet still plausible.  See id. Although the EPA
included in the TCLP several  refinements the EP lacked, both tests
model essentially the  same worst-case mismanagement scenario. See 51
Fed. Reg.  21,653; Edison Electric Institute v. EPA, 2 F.3d 438, 442 


That scenario assumes the "co-disposal of toxic wastes in an  actively
decomposing municipal landfill which overlies a  groundwater aquifer,"
45 Fed. Reg. 33,110/3; this hypotheti- cal landfill is composed of "5
percent industrial solid waste  and 95 percent municipal waste," 51
Fed. Reg. 21,653/3; the  toxic waste leaches unattenuated to the
groundwater strata,  see 45 Fed. Reg. 33,111/2; and the closest well
for drinking  water is 500 feet down gradient from the landfill. See


In order to conduct the TCLP, the EPA first determines  the composition
of the waste sample. If the sample contains  less than 0.5% dry solid
matter, called the "solid phase," then  the waste is filtered; the
liquid passing through the filter is  considered the TCLP extract and
is analyzed to determine  the concentrations of various chemicals. See
Office of Solid  Waste, EPA, Method 1311, in Test Methods for Evaluat-
 ing Solid Waste, Physical/Chemical Methods, ss 2.1, 7.3.15,  7.3.16
(3d ed. 1998) (EPA Publication SW-846). After apply- ing a dilution
and attenuation factor to simulate the diminu- tion in concentration
"expected to occur between the point of  leachate generation and the
point of human or environmental  exposure," Edison Electric, 2 F.3d at
441, the EPA deter- mines whether any of the resulting concentrations
of certain  chemicals are equal to or greater than the concentrations 
listed in 40 C.F.R. s 261.24, tbl. 1. If they are, then the  waste is
considered toxic and, consequently, hazardous. 40  C.F.R. s


If the waste contains more than 0.5% solid phase, then the  solid phase
is separated from the "liquid phase," see EPA  Publication SW-846 at s
2.2, if any, and reduced to particle  size in order to simulate the
various processes that break  down large solids in a landfill. See id.
at s 7.1.3; Edison  Electric, 2 F.3d at 444. An "extraction fluid" is
then mixed  with the solid phase and the resulting leachate, called
the  "liquid extract," is filtered through a glass fiber filter. EPA 
Publication SW-846 at ss 2.2, 7.1.4. The liquid phase and  the liquid
extract, treated collectively as the TCLP extract,  are then analyzed
to determine the concentration of various  chemicals, see id. at s
2.3; again, the dilution and attenuation  factor is applied and the
resulting concentrations compared  with those listed in the table at
40 C.F.R. s 261.24.


In Edison Electric we held that the EPA's decision to use  one test
based upon a single, hypothetical mismanagement  scenario was
authorized under a permissible construction of  the RCRA and entitled
to our deference pursuant to Chevron  U.S.A. Inc. v. Natural Res. Def.
Council, 467 U.S. 837 (1984).  See Edison Electric, 2 F.3d at 446.
Applying the Administra- tive Procedure Act, however, we rejected as
arbitrary and 


capricious the EPA's attempt to apply the TCLP to mineral  processing
wastes in general and in particular to those miner- al processing
wastes known as manufactured gas plant (MGP)  waste. See id. at
446-47. Specifically, we held that although  the "EPA need not
demonstrate that mineral wastes [includ- ing MGP waste] are typically
or commonly deposited in  [municipal solid waste] landfills ... the
Agency must at least  provide some factual support for its conclusion
that such a  mismanagement scenario is plausible." Id. at 446. The EPA
 could alternatively justify the application of the TCLP to  mineral
processing and MGP wastes if it could demonstrate  "on the record that
[these] wastes were exposed to conditions  similar to those simulated
by the TCLP." Id. at 447. Re- cently, we reaffirmed our holding that
the EPA must demon- strate a rational relationship between the
hypothetical mis- management scenario underlying the TCLP and the
actual  way in which the wastes tested by the TCLP are discarded.  See
Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914  (1998).


In the Phase IV Rule the EPA once again has used the  TCLP as the test
for determining the toxicity of mineral  processing wastes, including
MGP waste. See 63 Fed. Reg.  28,574, 28,599. The National Mining
Association, the Ameri- can Iron and Steel Institute, the Edison
Electric Institute,  and the Chemical Manufacturers Association
(collectively the  Associations) argue that the EPA has failed to
demonstrate  that the mismanagement scenario underlying the TCLP bears
 a rational relationship to the way in which mineral processing  and
MGP wastes are disposed of in fact; they therefore ask  this court
once again to strike down the EPA's application of  the TCLP to these
wastes as arbitrary and capricious. Addi- tionally, the Associations
argue that the EPA failed to consid- er or to respond to significant
comments the Associations  submitted suggesting the use of both the
TCLP and another  test, known as the Synthetic Precipitation Leaching
Proce- dure (SPLP). Although we hold that the EPA has justified  its
use of the TCLP alone to determine the toxicity of mineral  processing
wastes generally, and that the EPA did respond to  the Associations'
comments, we nonetheless find that the 


EPA has failed to justify application of the TCLP to MGP  waste.
Accordingly, we grant the petition for review in part  and vacate the
Phase IV Rule insofar as it provides for use of  the TCLP to determine
whether MGP waste exhibits the  characteristic of toxicity.


A. Mineral Processing Wastes (Other than MGP waste)


Paralleling our holding in Edison Electric, the EPA at- tempts to
justify its application of the TCLP to mineral  processing wastes on
two grounds: (1) It is likely that  mineral processing wastes have
been disposed of in municipal  landfills; and (2) mineral processing
wastes have been "ex- posed to conditions similar to those simulated
by the TCLP."  Because we find that evidence in the record supports
the first  proposition, we do not address the EPA's alternative


In response to this court's remand in Edison Electric, the  EPA
prepared a document entitled Applicability of the  [TCLP] to Mineral
Processing Wastes. There the EPA col- lected an impressive amount of
evidence that mineral process- ing wastes may have been disposed of as
hypothesized in the  mismanagement scenario modeled by the TCLP.
First, the  EPA catalogued evidence that many facilities generating
min- eral processing wastes are located near population centers  with
municipal landfills and that a substantial portion of  mineral
processing facilities generate mineral processing  wastes in
quantities small enough to be deposited in a munici- pal landfill.
Second, the EPA collected 14 cases of either  "likely," "possible," or
"potential" disposal of mineral process- ing wastes in municipal
landfills. In one of the two "likely"  cases an eyewitness saw waste
taken from A&W Smelters  and Refiners, a mineral processing facility,
being dumped in a  municipal landfill. In the other "likely" case, a
landfill locat- ed on an abandoned "strip mine" was closed after
having  accepted industrial wastes without a permit; an unidentified 
slag was among the laundry list of wastes found at the site.  In the
"possible" cases, "materials such as 'slag,' 'dusts,' and  'ash' [were
disposed of] in various landfills"; the materials  involved are not


wastes often become indistinguishable from the soil and de- bris in
municipal landfills," it is difficult to determine whether  mineral
processing wastes were actually involved. The "po- tential" cases
typically "involve mineral processing and mu- nicipal solid wastes
being disposed of in close proximity to  each other (e.g., in two
separate on-site disposal areas)."  Finally, the EPA collected ten
instances in which mineral  processing wastes had been stored at
mineral processing  facilities along with materials commonly found in
municipal  landfills. For example, one facility had a landfill on site
that  contained 98% plant trash and two percent "spent catalyst," 
while another facility operated a landfill on site composed of  90%
plant trash and 10% "mercury contaminated soil."


The Associations argue that this evidence is insufficient to  meet the
standard announced in Edison Electric, although  they do not dispute
the facts concerning the location of  mineral processing facilities
and the volume of waste they  produce. Rather, the Associations
maintain that all the  EPA's evidence does not establish that mineral
processing  wastes are plausibly disposed of in the manner modeled by 
the TCLP. For example, they claim that there is no evidence  that the
material the eyewitness saw moved from A&W  Smelters and Refiners
originated at that facility or, alterna- tively, that the material was
subject to regulation under the  RCRA as hazardous waste. See 42
U.S.C. s 6921(b)(3)(A)(ii)  (Bevill exclusion, as implemented by EPA,
exempts from  regulation under Subtitle C of RCRA solid wastes from 
extraction and beneficiation of ores and minerals and 20  mineral
processing wastes); Solite Corp. v. EPA, 952 F.2d  473, 479 n.4,
481-82 & n.6 (D.C. Cir. 1991). Finally, the  Associations contend that
the EPA's examples of landfills  located at mineral processing
facilities are inadequate because  most of those sites did not contain
the mixture of 95%  municipal waste and 5% industrial waste that the
TCLP  simulates and the two sites that did have a similar ratio did 
not contain mineral processing wastes.


We hold that the evidence the EPA has marshaled in  support of applying
the TCLP to mineral processing wastes is  sufficient to meet the
standard announced in Edison Electric. 


In that case we did not demand that the EPA demonstrate  that the TCLP
exactly reflects actual disposal practices, but  only that the
mismanagement scenario underlying the TCLP  bears some "rational
relationship" to those practices. See  Edison Electric, 2 F.3d at 446.
Therefore, to the extent the  Associations seek to exploit factual
uncertainties in the EPA's  account--such as whether the waste the
eyewitness saw  taken from A&W was actually a mineral processing waste
 subject to Subtitle C of the RCRA--we can agree that the  evidence is
not conclusive and nonetheless hold that it is  sufficient to make
application of the TCLP "rational" or  "plausible." Especially with
respect to on-site landfills, the  Associations' objections amount to
nothing more than re- peated observations that the EPA's evidence
about actual  disposal does not precisely match the conditions the
agency  models in the TCLP. Such complaints are of little moment,  for
they merely point up an inherent feature of the TCLP,  and indeed of
any model. As we have previously explained,  because "a model is meant
to simplify reality in order to  make it tractable," it is no
criticism of a model "[t]hat [it]  does not fit every application
perfectly." Chemical Manufac- turers Ass'n v. EPA, 28 F.3d 1259, 1264


B. MGP Waste


The Associations also argue that the EPA has not justified  applying
the TCLP to MGP waste because the MGP industry  stopped producing
waste about 40 years ago and there is no  evidence that MGP waste is
currently being disposed of in  municipal landfills. In response, the
EPA makes two points.  First, the EPA notes that, prior to the demise
of the MGP  industry, MGP waste was deposited in landfills and at
indus- try facilities, many of which are currently being remediated. 
Second, the EPA argues that some of the MGP waste from  the sites
being remediated could be sent to municipal land- fills, as evidenced
by the following passage in a handbook  issued by the Edison Electric
Institute advising utilities on  how to clean up contaminated sites:


Landfilling is the most common and simplest of the  disposal methods.
If the wastes are hazardous then they 


must be disposed of in a properly licensed secure landfill.  The
nearest such landfill may be hundreds of miles from  the site, which
results in high transportation costs. If  the wastes are
non-hazardous, disposal may be at a local  commercial municipal
landfill. It is therefore important  to determine if the wastes are
hazardous or non- hazardous both for different transportation costs
and for  the extreme difference in disposal costs, with secure 


On the basis of this publication, the EPA concludes that "the 
utilities' own characterization of its disposal practices demon-
strates that MGP wastes that do not display the toxicity 
characteristic are commonly disposed in municipal solid waste 
landfills, evidently because it is cheaper to do so."


The Associations contend that because the EPA has not  provided any
evidence indicating that any remediation waste  has ever found its way
into any municipal landfill--or is for  some particular reason likely
to do so--the agency has failed  to carry its burden, as set out in
Edison Electric, of "pro- vid[ing] some factual support for its
conclusion that such a  mismanagement scenario is plausible." Although
the Associ- ations do not dispute that there are many sites, including
 municipal landfills, that contain MGP waste, they point out  that the
EPA has not provided any evidence linking the waste  at those sites to
waste generated during the remediation of  sites contaminated with
MGP. Further, the Associations  argue that the handbook issued by the
Edison Electric Insti- tute simply canvasses the available options for
waste disposal  without advocating any practice and without indicating
that  remediation wastes were or should be deposited in municipal 
landfills. Indeed, the handbook specifically warns against  disposing
of hazardous MGP waste in a municipal landfill. As  the Associations
see it, the EPA's evidence establishes, at  most, that it is possible
for MGP waste from a remediation  site to be deposited in a municipal


As we have said, the EPA must show that the mismanage- ment scenario
the TCLP simulates bears "some rational  relationship" to how wastes
subject to that test are actually 


managed. See Edison Electric, 2 F.3d at 446. Here, the  EPA has
demonstrated the possibility that MGP waste from  remediation sites
could be disposed of in a municipal landfill,  but has not produced a
shred of evidence indicating that has  happened or is likely to
happen. Upon the current record,  therefore, we must conclude that the
EPA has not justified its  application of the TCLP to MGP waste.


Judge Randolph, post, expresses dismay that the Court  rejects the
EPA's application of the TCLP to MGP waste-- for which he would find
there is at least some record sup- port--while approving the agency's
application of the TCLP  to the other "350 or so wastes in this
rulemaking for which  the agency uses TCLP," Diss. op. at 1, and about
which the  record is silent. Suffice to say, we do not require the EPA
to  present evidence justifying application of the TCLP to any  other
specific mineral processing waste because no party  challenges the
TCLP with respect to any other specific waste.


The Associations have pointed out that MGP waste differs  in one very
real respect from other mineral processing  wastes: MGP waste is no
longer produced and therefore will  not be disposed of in municipal
landfills unless that happens  in the course of a remediation effort.
Evidence that mineral  processing wastes that are still being produced
have been  disposed of in municipal landfills offers no support for
the  different proposition that MGP waste from a remediation  effort
has been or will be so disposed.


Furthermore, the incomplete and vague evidence in the  record relating
to MGP waste is far less persuasive than the  evidence the EPA
produced for mineral processing wastes  generally. For instance, even
in the two examples singled  out by Judge Randolph--by far the
strongest in the record-- there is no evidence that the "coal tar,
kerosene, and other  wastes typically produced at MGP sites," Diss.
op. at 2, and  found at the landfills actually originate from an MGP
site at  all, let alone evidence that they came to the landfill from a
 remediation effort. Nor, contrary to Judge Randolph's sug- gestion,
see Diss. op. at 2, does evidence that the MGP  industry disposed of
its waste in municipal landfills--when 


that industry was actively producing waste--support the in- ference
that remediation waste containing MGP waste will  now be deposited in
landfills. For these reasons, we do not  think the EPA's evidence
supporting application of the TCLP  to mineral processing wastes
justifies its application to MGP  waste.


C. Significant Comments


The Associations also argue that the EPA failed to consider  and
respond to their comments suggesting the use of both the  SPLP and the
TCLP to determine toxicity. This argument is  without merit. During
the rulemaking, the EPA responded  to the Associations' comments by
highlighting evidence that  the SPLP is no more accurate than the TCLP
and by  reiterating its decision to use a single test to determine 
toxicity instead of using different tests depending upon how  the
waste is actually managed. The EPA therefore adequate- ly considered
and responded to the Associations's comments.


* * *


For the foregoing reasons we grant the petition for review  in part and
vacate the Phase IV Rule insofar as it provides  for the use of the
TCLP to determine whether MGP waste  exhibits the characteristic of
toxicity.


So ordered.


Randolph, Circuit Judge, dissenting in part: I respectfully  dissent
from Judge Ginsburg's conclusion, for himself and  Judge Silberman,
that EPA failed to justify "its application of  TCLP to MGP wastes."
Maj. op. at 22.


Edison Electric Institute v. EPA, 2 F.3d 438, 446 (D.C. Cir.  1993),
and Columbia Falls Aluminum Co. v. EPA, 139 F.3d  914, 922-23 (D.C.
Cir. 1998), require EPA to show a rational  relationship between its
chosen toxicity test--TCLP--and the  wastes to which the test is
applied. (TCLP simulates what  would occur if waste were dumped in a
landfill.) The case  before us involves the application of TCLP to 358
different  types of mineral processing wastes generated by 41
different  sectors of the mineral processing industry. Has EPA satis-
fied the "rational relationship" test with respect to all 358  types
of waste? Yes, my colleagues decide, because there are  2 cases of
"likely" disposal of mineral processing wastes in  municipal landfills
and 12 such "possible" cases. Quite obvi- ously, this "proof" says
nothing whatever about hundreds of  types of waste thrown off by this
industry. The majority's  inference must be that if some types of
mineral processing  waste may be dumped in a landfill, it is plausible
to suppose  that all types may wind up there.


I have no quarrel with this reasoning, although I wish it  had been
made more explicit. But I cannot comprehend why  the reasoning does
not apply equally to one other type of  mineral processing
waste--"manufactured gas plant" (MGP)  waste. See 63 Fed. Reg. at
28,574; Edison Elec., 2 F.3d at  443, 446-47 (treating MGP waste no
differently than other  mineral processing wastes). Put another way,
why is it that  of the 350 or so wastes in this rulemaking for which
the  agency uses TCLP, my colleagues reach in and pluck out this 
one--MGP--to place under the judicial microscope? Odder  still, the
record contains more support for using the test on  MGP wastes than
for using it on the hundreds of other  unnamed mineral processing


My colleagues share EPA's conjecture that because mineral  processing
operations are often located near urban areas,  their wastes are
likely to be disposed in municipal landfills.  See maj. op. at 25. But
MGP plants too were located in such  spots, producing gas for
municipalities. While EPA identified 


only 14 examples of "likely" or "possible" landfill disposal for  all
358 mineral processing wastes, the agency listed 14 exam- ples of
codisposal for MGP wastes alone. See Office of Solid  Waste, EPA,
Applicability of the Toxicity Characteristic  Leaching Procedure to
Mineral Processing Wastes at 14  (1998). The record is a bit hazy
regarding some of these  instances. For two of them, though, there is
sufficient evi- dence to make it likely that MGP waste was disposed in
 municipal landfills. In both the New Lyme (Ohio) Landfill,  see id.
app. D, and the Schilling Landfill in Ironton, Ohio, see  id., there
were significant concentrations of coal tar, kero- sene, and other
wastes typically produced at MGP sites.


The majority's concern seems to be that these two exam- ples did not
involve "remediation waste," that is, waste from  clean up operations
after the MGP plants ceased functioning.  Maj. op. at 27-28. How can
my colleagues know that? No  findings to this effect appear in the
record. Besides, I believe  they are mistaken. The New Lyme landfill,
for example, did  not begin operation until 1969, see Applicability of
the Toxici- ty Characteristic Leaching Procedure to Mineral Processing
 Wastes app. D, yet MGPs "stopped producing waste about 40  years
ago," maj. op. at 27; see also Petitioners' Reply Brief  on RCRA
Classification Issues at 17 (stating that MGP  industry defunct for 40
years). If not from remediation, how  did this MPG waste wind up in
the landfill? At any rate, the  same factors that led to disposing of
MPG waste in landfills in  the past--proximity to landfills, size of
the waste, cost--are  with us today and should have been enough to
sustain EPA's  rule.


I again ask why the special judicial treatment of MGP  waste? Of the
other 350 or so types of mineral processing  wastes, how many of these
are (1) from abandoned plants; (2)  near city dumps; and (3) have in
the past wound up in those  dumps? The majority does not say because
it does not know.  Yet it sustains application of TCLP to these
wastes, for which  there is no evidence, and strikes down TCLP for
manufac- tured gas plant wastes, despite abundant evidence showing a 
rational relationship. I therefore dissent.