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


ENV DEF FUND

v.

EPA


99-1048a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: The Environmental Defense Fund  ("EDF") and the
Environmental Technology Council ("ETC")  petition for review of a
final determination by the Environ- mental Protection Agency ("EPA")
not to add fourteen sol- vent wastes to its list of hazardous wastes
under Subtitle C of  the Resource Conservation and Recovery Act of
1976  ("RCRA"), as amended, 42 U.S.C. s 6921-6939b. Petitioners 
challenge two aspects of EPA's decision. First, petitioners  contend
that EPA made the scope of its listing rulemaking  narrower than is
permissible under the plain language of  EPA's regulation governing
such listing determinations.  EPA analyzed whether the wastes produced
when each of the  fourteen chemicals is used as a solvent is
hazardous. Such  wastes usually consist of a number of constituent
substances,  but EPA limited its inquiry to whether the presence of
the  chemical solvent in the resulting waste was by itself a suffi-
cient reason to list the waste as hazardous. Petitioners  contend that
EPA's regulation, 40 C.F.R. s 261.11(a)(3),  which refers to "any
toxic constituent," imposed on EPA the  heavier burden of surveying
the range of constituent sub- stances comprising the waste before
deciding not to list such  wastes. Second, under EPA's regulation, EPA


the risks posed by a waste in part by considering plausible 
mismanagement scenarios, and petitioners challenge EPA's  decision
that wastes produced when one chemical, isophorone,  is used as a
solvent could not plausibly be disposed of in a  landfill, maintaining
that EPA lacked sufficient data to make  that decision, rendering it


We hold that because EPA's regulation is silent as to how  EPA must
conduct its listing inquiry and because EPA  reasonably concluded that
no wastes from the solvent use of  isophorone were, or were likely to
be, disposed of in landfills,  EPA permissibly limited the scope of
its rulemaking to the  toxicity of the solvents and conducted a
reasonable evaluation  of plausible mismanagement scenarios for
isophorone. Ac- cordingly, we deny the petition for review.


I.


Congress enacted Subtitle C of RCRA, 42 U.S.C. ss 6921- 6939b, to
establish a "cradle-to-grave" regulatory structure  providing for the
safe treatment, storage, and disposal of  hazardous waste. Natural
Resources Defense Council v.  EPA, 25 F.3d 1063, 1065 (D.C. Cir.
1994). Congress defined  "hazardous waste" broadly in RCRA,1
delegating to EPA the 




__________

n 1 "Hazardous waste" is: a solid waste, or combination of solid
wastes, which because of  its quantity, concentration, or physical,
chemical, or infectious  characteristics may-


(A) cause, or significantly contribute to an increase in mor- tality or
an increase in serious irreversible, or incapacitating  reversible,
illness; or


(B) 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). "Solid waste" is "any garbage, refuse, sludge 
from a waste treatment plant, water supply treatment plant, or air 
pollution control facility or other discarded material, including
solid,  liquid, semisolid, or contained gaseous material resulting
from  industrial, commercial, mining, and agricultural operations, and
 from community activities...." Id. s 6903(27).


task of promulgating regulations identifying the characteris- tics of
hazardous waste and listing specific wastes as hazard- ous. Id.
Pursuant to this authority, EPA has promulgated  listing criteria to
determine whether solid wastes are hazard- ous. 40 C.F.R. s 261.11.
Once listed as "hazardous," a  waste is subject to significant
regulation. See Columbia  Falls Aluminum Co. v. EPA, 139 F.3d 914, 915
(D.C. Cir.  1998); American Petroleum Institute v. EPA, 906 F.2d 729, 
733 (D.C. Cir. 1990) (citing 42 U.S.C. ss 6922-6925).


In 1984, Congress amended RCRA to require EPA to  decide by February
1986 whether to list "solvents" as haz- ardous wastes. 42 U.S.C. s
6921(e)(2). When EPA did not  act promptly, EDF filed suit seeking an
order directing EPA  to make a listing determination as to the
hazardous nature  of certain solvents. The result was a consent decree
requir- ing EPA to "promulgate a final listing determination for 
solvent wastes on or before May 31, 1997."2 The consent  decree
specified that the "listing determination [was to] in- clude the
following spent solvent wastes, still bottoms from  the recovery of
the following solvents, and spent solvent  mixtures: cumene, phenol,
isophorone, acetonitrile, furfural,  epicholorohydrin, methyl
chloride, ethylene dibromide, ben- zyl chloride, ...
p-dichlorobenzene, ... 2-methoxyethanol,  2-methoxyethanol acetate,


The rulemaking under review is one of a series in which  EPA has
considered whether wastes from the use of specified  chemicals as
solvents should be listed as hazardous. See 51  Fed. Reg. 6537 (1986);
45 Fed. Reg. 74,884 (1980). To date,  EPA has listed wastes from
solvent use of approximately 30  chemicals. See 40 C.F.R. s 261.31,
waste codes F001-F005.  EPA determined that it could rely on the
methodology it had  used in the prior solvent rulemakings consistent




__________

n 2 The deadline was advanced one year on stipulation of EDF  and


3 EPA asserts in its brief that the chemicals at issue are not  general
use solvents, but are used, if at all, in a variety of specialty 
applications because of price and other characteristics.


obligations under the consent decree. See 63 Fed. Reg.  64372, 64373
(1998).


After conducting its preliminary analysis, EPA issued a  proposed rule
on August 14, 1996, not to amend the solvent  waste listing in 40
C.F.R. s 261.31 to include the fourteen  solvent wastes. 61 Fed. Reg.
42,318, 42,138 (1996). Relying  on its longstanding methodology, EPA
stated that it was  examining the toxicity of the spent solvents only,
as opposed  to any additional chemicals that might mix with the
solvent to  form a larger waste stream. See id. at 42,319-20. EPA 
explained that many of these solvent wastes are already  regulated as
hazardous waste because they either exhibit a  hazardous waste
characteristic or are mixed with other sol- vent wastes that are
listed as hazardous. Id. at 42,319. EPA  further explained that in
limiting the scope of its proposed  rule to "a determination only
regarding the need for adding  these specific wastes to the RCRA
hazardous waste listings  based on the specific criteria in the
listing regulations," id.  (emphasis added), it was exercising its
broad discretion under  RCRA and the consent decree "to reasonably
define the  scope of the listing determination." Id. at 42,320. This 
approach also was necessary as a practical matter, in EPA's  view,
because of the ubiquity of "solvents" in general. Id. 03  The proposed
rule also identified the research and data  gathered by EPA to
determine "plausible mismanagement  scenarios" for the solvents. Id.


Petitioners filed comments objecting to the limited scope of  the
proposed rule in view of the regulatory requirement to  consider "any"
hazardous constituents listed in Appendix VIII  to 40 C.F.R. Part
261.4 Petitioners also argued that EPA had  failed to consider all
plausible mismanagement scenarios.  Petitioners contended that because
the universe of possible  solvent uses is too large to capture all
mismanagement sce- narios through empirical study, EPA should have




__________

n 4 ETC noted a general objection that "the hazardous constitu- ents
that are typically found in these solvents were not identified,  nor
were the risks posed by multiple hazardous constituents evalu-


such "standard" mismanagement scenarios as those involving  land
disposal even if EPA's particular research did not sug- gest the
presence of such disposal methods.


In the final rule, EPA concluded that the solvents should  not be
listed as hazardous wastes. 63 Fed. Reg. at 64,372.  EPA reiterated
that it defined "spent solvent wastes" solely  in terms of the solvent
constituents, and that in view of the  large number of potential
solvent waste combinations, prac- tical necessity dictated this manner
of proceeding. Id. at  64,373-74, 64,383. EPA defended its methodology
for deter- mining plausible waste mismanagement scenarios, and  deemed
implausible those management scenarios EDF as- serted to be
"plausible." Id. at 64,377-82, 64,383-85. EDF  and ETC petition for


II.


Petitioners contend that EPA acted inconsistently with its  regulation
by limiting the scope of its rulemaking to solvents  only, and that
EPA acted arbitrarily and capriciously by  relying on an industry-wide
survey to identify plausible mis- management scenarios for solvent
wastes.5 The first con- tention turns on petitioners' interpretation
of EPA's listing  regulation; the second is limited by petitioners'
focus on  mismanagement scenarios for the solvent isophorone.




__________

n 5 The court has jurisdiction to review EPA's determination not  to
amend 40 C.F.R. s 261.31 to include any of the fourteen solvent 
wastes under RCRA, 42 U.S.C. s 6976(a)(1), as a denial of a  petition.
The relevant petition is EDF's complaint in the district  court that
led to the consent decree upon which EPA acted. While  the court in
American Portland Cement Alliance v. EPA, 101 F.3d  772 (D.C. Cir.
1996), rejected the view that comments submitted  during an agency
initiated rulemaking constituted a petition for  purposes of s 7006(a)
review of the agency's deferral of rulemaking,  id. 778-79, EDF's
complaint in the district court led to the rulemak- ing proceeding in
which EPA reached a non-listing decision, and  thus served the
function of a petition that EPA denied, thereby  completing the
regulatory process. See id. 779.


A.


EPA's listing regulation provides in pertinent part:


(a) The Administrator shall list a solid waste as a haz- ardous waste
only upon determining that the solid waste  meets one of the following
criteria:


(1) It exhibits any of the characteristics of hazardous  waste
identified in subpart C.


(2) It has been found to be fatal to humans in low  doses or.... [has
been shown through laboratory studies  or otherwise to be capable of
causing severe illness or  death].


(3) It contains any of the toxic constituents listed in  appendix VIII
and, after considering [certain enumerat- ed] factors, the
Administrator concludes that the waste is  capable of posing a
substantial present or potential haz- ard to human health or the
environment when improper- ly treated, stored, transported or disposed
of, or other- wise managed....


40 C.F.R. s 261.11 (emphasis added).6 Petitioners focus on  the
italicized language of subsection (3) as requiring EPA to 




__________

n 6 EPA identified "enumerated factors" to be considered after 
determining the presence of a toxic constituent in the waste as: (i)
The nature of the toxicity presented by the constituent. (ii) The
concentration of the constituent in the waste. (iii) The potential of
the constituent or any toxic degradation  product of the constituent
to migrate from the waste into the  environment under the types of
improper management consid- ered in paragraph (a)(3)(vii) of this
section. (iv) The persistence of the constituent or any toxic degrada-
tion product of the constituent. (v) The potential for the constituent
or any toxic degradation  product of the constituent to degrade into
non-harmful constit- uents and the rate of degradation. (vi) The
degree to which the constituent or any degradation  product of the
constituent bioaccumulates in ecosystems.


consider the presence of "any" hazardous constituents listed  in
Appendix VIII to 40 CFR Part 261, not just the solvent  itself.
Petitioners also maintain that to conclude otherwise  would render
meaningless the distinction between the routes  to listing provided in
subsections (1) and (2), which focus on  the toxicity of the waste to
be listed, and subsection (3), which  focuses on the existence of
toxic constituents in the waste and  the potential for the waste to
pose a health or environmental  hazard when improperly managed.
Further, because most of  the solvents at issue are not listed in
Appendix VIII of Part  261, petitioners maintain that EPA cannot
construe  s 261.11(a)(3), which refers to the presence of "toxic
constitu- ents listed in appendix VIII", to mean that the chemical 
solvent is the toxic constituent to be examined. In addition, 
petitioners contest EPA's view of the impracticality of exam- ining
other toxic constituents potentially present in the sol- vent


The court is bound to accept " '[a]n agency's interpretation  of its
own regulations ... unless it is plainly wrong.' " Chem- ical Waste
Management, Inc. v. EPA, 869 F.2d 1526, 1538-39  (D.C. Cir. 1989)
(quoting General Carbon Co. v. Occupational  Safety and Health Review
Comm'n, 860 F.2d 479, 483 (D.C.  Cir. 1988)). See also, e.g., Natural
Resources Defense Coun- cil v. EPA, 25 F.3d 1063, 1068-69 (D.C. Cir.
1994); Hazard- ous Waste Treatment Council v. Reilly, 938 F.2d 1390,
1395  (D.C. Cir. 1991). Especially "on 'a highly technical question 




__________

n (vii) The plausible types of improper management to which  the waste
could be subjected.


(viii) The quantities of the waste generated at individual  generation
sites or on a regional or national basis. (ix) The nature and severity
of the human health and envi- ronmental damage that has occurred as a
result of the improp- er management of wastes containing the
constituent.


(x) Action taken by other governmental agencies or regula- tory
programs based on the health or environmental hazard  posed by the
waste or waste constituent.


(xi) Such other factors as may be appropriate.


40 C.F.R. s 261.11(a)(3).


... courts necessarily must show considerable deference to  an agency's
expertise.' " Chemical Waste Management, 869  F.2d at 1539 (quoting
MCI Cellular Tel. Co. v. FCC, 738 F.2d  1322, 1333 (D.C. Cir. 1984)).
We hold that EPA did not  clearly err in interpreting its listing
regulation to require only  that it analyze the toxicity of the
solvents, rather than other  constituents with which the solvents
might be combined.


Petitioners' "plain language" and supporting contentions  are
unpersuasive. Subsection (3), on which petitioners rely,  merely
provides a threshold that must be met before a listing  determination
may be made on the basis of constituent con- tent: that is, that "any"
Appendix VIII constituent be present  in the waste. 40 C.F.R. s
261.11(a)(3). And the distinction  relied on by petitioners between
the three major listing  criteria in s 261(a) demonstrates only that
EPA has given  itself the option of evaluating either toxic
characteristics of  the waste as a whole, s 261(a)(1) and (2), or of
specific  constituents within the waste, s 261(a)(3), and does not
pre- clude the possibility that a waste may consist of one constitu-
ent, much less that in a particular rulemaking EPA will focus, 
pursuant to s 261(a)(3), on one constituent.7 That all of the 
solvents are not listed in Appendix VIII does not demonstrate  error;
EPA points out that it is routine to add a waste to  Appendix VIII and
simultaneously to list a waste as hazard- ous based on that
constituent. See Dithiocarbamate Task  Force v. EPA, 98 F.3d 1394,




__________

n 7 Indeed, the consent decree defines the relevant "spent sol- vent"
wastes as the solvents, mandating that EPA evaluate "the  following
spent solvent wastes", and then listing the solvents alone.


8 Contrary to EPA's contention, petitioners' reference to the 
legislative history of 1984 delisting legislation, 42 U.S.C. s
6921(f),  was properly raised in its reply brief in response to the
statement in  EPA's brief that in amending RCRA in 1984 Congress was
aware of  EPA's practice of making solvent listing determinations
based  solely on the toxicity of the solvent. Petitioners' legislative
history  argument fails substantively, however, because delisting is
different  from the imposition of reasonable restrictions on the scope
of a  listing determination.


It is also significant that EPA does not purport to have  made a
non-listing determination for specific solvent waste  combinations
without having evaluated the toxicity of those  combinations; to the
contrary, EPA made clear that its  rulemaking concerns only the
toxicity of the solvents. See,  e.g., 63 Fed. Reg. at 64,383. There is
nothing to suggest that  EPA could not in the future examine specific
solvent waste  combinations on the basis that the specific waste
combina- tions as a whole are toxic; many such wastes already are 
listed due to the existence of toxic constituents other than the 
solvent itself. 61 Fed. Reg. 42,319. EPA thus not only did  not
misinterpret its regulation, but did not abuse its discre- tion under


B.


To the extent that petitioners contend that EPA's risk  analysis was
flawed insofar as its study of "plausible misman- agement" scenarios
was inadequate, petitioners focus only on  the solvent isophorone.
EPA's approach, as illustrated by its  examination of isophorone,
involved gathering data on those  industry categories (known as
"standard industry classifica- tions", or "SIC"s) that might include
facilities that use isopho- rone as a solvent, mailing preliminary
questionnaires to facili- ties within those SICs, and then mailing




__________

n 9 Merely disputing EPA's evaluation of the impracticality of 
examining what presently is an unknown number of solvent waste 
combinations, as petitioners do, is not the same as demonstrating 
that EPA abused its discretion to limit the scope of its rulemaking 
under s 261.11(a)(3). Because we conclude that EPA did not abuse  its
discretion in analyzing only the solvents, we need not be  detained by
EPA's contention that petitioners failed in their initial  brief to
make an "arbitrary and capricious" challenge but relied  instead on
the broader contention that EPA had acted contrary to  its listing


"Section 3007"10 questionnaires to those facilities for whom  follow-up
was warranted. Contending that EPA's initial liter- ature search was
insufficiently thorough to target all relevant  SICs, petitioners
argue first, that a number of isophorone  users were discovered
through "pure serendipity" when they  were mailed surveys for other
reasons, and that there thus is  no way of knowing how many remaining
isophorone users  exist, and second, that EPA has not accounted for
all known  domestic and imported quantities of isophorone in the
United  States. More fundamentally, petitioners assert that the at-
tempt to conduct a comprehensive industry survey was flawed  from the
beginning, and that a "random sampling" would  have been a preferred
approach, because the solvents are  potentially used by so many
facilities in so many different  industries. As a result, petitioners
conclude, EPA mistakenly  assumed that it had isolated all potential
isophorone misman- agement scenarios and improperly disregarded the
"presump- tive" mismanagement scenario of landfill disposal on the
basis  that this scenario did not match EPA's empirical data.


Upon considering petitioners' challenge to EPA's methodol- ogy, we hold
that petitioners fail to show that EPA's action  was "arbitrary,
capricious, an abuse of discretion, or other- wise not in accordance
with law." 5 U.S.C. s 706(2)(A).  Rather, EPA's "reasons and policy
choices ... conform to  'certain minimal standards of
rationality'...." Small Refin- er Lead Phase-Down Task Force v. EPA,
705 F.2d 506, 520- 21 (D.C. Cir. 1983) (citation omitted). See also,




__________

n 10 The "RCRA s 3007 Solvent Use Questionnaire" was more  detailed
than EPA's preliminary questionnaire, and concerned the  use of
twenty-one chemicals as solvents, including the fourteen  chemicals at
issue here. EPA sent the s 3007 questionnaire to  approximately 10% of
the facilities to whom the preliminary ques- tionnaire had been sent,
given the responses from most facilities  indicating either a lack of
use of the chemicals as solvents, or small  volume of use.


to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416  (1971). EPA
has demonstrated that a landfilling "presump- tion" did not
necessarily apply in the case of isophorone.  Rather, EPA concluded
that the high organic content of  isophorone found in EPA's survey
called for a presumption of  thermal treatment, such as incineration,
combustion in a  boiler, or fuel blending, given the fuel value of
organic waste  and the potential for liability arising from
landfilling organic  matter.11 See 61 Fed. Reg. at 42,345; 63 Fed.
Reg. at 64,384- 85; 59 Fed. Reg. 66,072, 66,074 (1994). EPA employed a
 reasonable methodology in reaching this conclusion, both in 
analyzing isophorone data to determine the high organic  content of
the solvent, and in analyzing isophorone treatment  to compare the
presumptive thermal treatment of organic  waste with the empirical
reality of isophorone's disposal.  While petitioners maintain that
EPA's literature search was  incomplete, EPA's decision to review the
relevant literature  to identify uses of isophorone by SIC code, and
to limit its  review of the publication Chemical Abstracts to a
four-year  period, was well within its discretion. As EPA pointed out,
 isophorone solvent use is extremely limited, and it is highly 
unlikely that a process that is still in use today would not be 
reported in recent publications. A four-year research limita- tion
thus was a reasonable choice for EPA to make. Similar- ly, petitioners
fail to show that EPA's methodology for com- piling a facilities
mailing list, which involved cross-referencing  the SIC codes relevant
to isophorone with other EPA data  sources, was not reasonably




__________

n 11 The only wastes for which EPA's research indicated that 
landfilling might be a plausible management scenario were sludge  from
biological treatment and ash from combustion. 63 Fed. Reg.  at 64,384.
Because biological treatment and combustion are effec- tive in
destroying solvents, EPA could reasonably conclude that  these
residuals contained at most a de minimis amount of solvent,  and thus
would not pose a sufficient solvent-based risk to warrant  listing.


those facilities utilizing isophorone as a solvent. Such cross-
referencing between the relevant SIC codes and EPA's Toxic  Release
Inventory ("TRI") for all facilities reporting the use  of other TRI
chemicals marks a thorough approach to scan- ning across facilities to
determine possible isophorone users  that would not otherwise be
located. While there may be  other ways to approach the task that EPA
identified, EPA's  approach was not arbitrary.


Furthermore, regarding petitioners' contention that EPA  overlooked
many isophorone-using facilities that were later  identified through
"pure serendipity", EPA points out that all  of the facilities
responding to its initial survey that claimed to  use isophorone as a
solvent were either included in the  targeted SIC codes or mistakenly
responded where their use  of isophorone did not meet the definition
of solvent use.12  Similarly, a number of responses to the final
survey mistak- enly claimed non-solvent uses of isophorone, and hence
the  final number of reported responses differs from the number 
originally identified as potential survey recipients. More 
fundamentally, petitioners have provided no basis on which  the court
can conclude that "random sampling" would have  produced more accurate
data. So far as we can tell from  petitioners' succinct statement, the
advantage of random sam- pling arises from the fact that it purports
to do no more than  to gather representative facts from which to draw
logical  presumptions as to management scenarios, whereas EPA's 
"industry survey" risks analytical rigidity where the survey  falls
short of its task. However, EPA did no more than draw  the logical
conclusion of presumptive thermal treatment from  the high organic
content of the isophorone wastes surveyed, a  conclusion confirmed by




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n 12 The mistaken responses of non-solvent isophorone use are  recorded
in telephone logs and other background documents.


thus supporting the reasonableness of EPA's methodology.13


Accordingly, we deny the petition for review.




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n 13 For similar reasons, petitioners' argument that EPA might  not
have accounted for all isophorone produced or imported into the 
United States is a red herring. Even if EPA's survey did not  account
for all isophorone used as a solvent in the United States, its 
methodology provided a reliable approximation thereof, and thus a 
sound basis on which to presume plausible mismanagement scenar- ios
from the high organic content of the isophorone surveyed, and to 
check that presumption against empirical data. In any event, 
petitioners concede EPA's point that the term "consumption" in the 
Chemical Economics Handbook--the value of which EPA's analysis  was
based on--includes imports to the United States. While peti- tioners
argue that EPA's consumption figure is unlikely, as it would  require
United States import and export figures to match, it offers  no
evidence to suggest that the figure is incorrect.