United
States
Court
of
Appeals
FOR
THE
DISTRICT
OF
COLUMBIA
CIRCUIT
Argued
February
24,
2003
Decided
August
8,
2003
No.
01­
1216
American
Chemistry
Council,
Petitioner
v.
Environmental
Protection
Agency,
Respondent
On
Petition
for
Review
of
a
Final
Rule
of
the
Environmental
Protection
Agency
Michael
W.
Steinberg
argued
the
cause
for
petitioner.
With
him
on
the
briefs
were
David
F.
Zoll
and
Leslie
A.
Hulse.
Thomas
Sayre
Llewellyn
argued
the
cause
for
amicus
curiae
American
Petroleum
Institute
in
support
of
petitioner.
With
him
on
the
brief
were
G.
William
Frick
and
Ralph
J.
Colleli,
Jr.
Jon
M.
Lipshultz,
Attorney,
U.
S.
Department
of
Justice,
argued
the
cause
for
respondent.
With
him
on
the
brief
was
Steven
E.
Silverman,
Attorney,
U.
S.
Environmental
Protec­
tion
Agency.
John
C.
Cruden,
Assistant
Attorney
General,
U.
S.
Department
of
Justice,
entered
an
appearance.
Before:
Ginsburg,
Chief
Judge,
and
Sentelle
and
Randolph,
Circuit
Judges.
Opinion
for
the
court
filed
by
Chief
Judge
Ginsburg.
Ginsburg,
Chief
Judge:
The
American
Chemistry
Council
(
ACC)
petitions
for
review
of
a
rule
promulgated
by
the
Environmental
Protection
Agency
pursuant
to
the
Resource
Conservation
and
Recovery
Act
of
1976,
42
U.
S.
C.
""
6901­
6992(
k),
treating
as
a
"
hazardous
waste"
any
substance
that
is
either
mixed
with
or
derived
from
a
listed
hazardous
waste.
The
effect
is
to
render
such
mixtures
and
derivatives
subject
to
the
stringent
standards
for
the
management
of
hazardous
waste.
We
reject
the
ACC's
argument
that
the
EPA
lacked
authority
for
the
rule
under
the
RCRA
and
hence
we
deny
the
petition
for
review.
I.
Background
The
RCRA
"
is
a
comprehensive
environmental
statute
that
empowers
EPA
to
regulate
hazardous
wastes
from
cradle
to
grave,
in
accordance
with
...
rigorous
safeguards
and
waste
management
procedures."
Chicago
v.
Environmental
De­
fense
Fund,
511
U.
S.
328,
331
(
1994);
see
Environmental
Defense
Fund
v.
EPA,
210
F.
3d
396,
397­
98
(
D.
C.
Cir.
2000);
United
Technologies
Corp.
v.
EPA,
821
F.
2d
714,
716
(
D.
C.
Cir.
1987).
The
Act
requires
the
EPA
to
regulate
the
identi­
fication,

disposal,
and
treatment
of
"
hazardous
waste,"
which
is
defined
as:
a
solid
waste,
or
combination
of
solid
wastes,
which
because
of
its
quantity,
concentration,
or
physical,
chemi­
cal,
or
infectious
characteristics
may
­
(
A)
cause,
or
significantly
contribute
to
an
increase
in
mortality
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
other­
wise
managed.
42
U.
S.
C.
"
6903(
5).
"
Solid
waste"
is
in
turn
defined
(
in
part)
as
any
"
discarded
material,
including
solid,
liquid,
semisolid,
or
contained
gaseous
material
resulting
from
industrial
[
or]
commercial
...
operations."
Id.
"
6903(
27).
The
Act
requires
the
Administrator
to:
develop
and
promulgate
criteria
for
identifying
the
char­
acteristics
of
hazardous
waste,
and
for
listing
hazardous
waste
...
taking
into
account
toxicity,
persistence,
and
degradability
in
nature,
potential
for
accumulation
in
tissue,
and
other
related
factors
such
as
flammability,
corrosiveness,
and
other
hazardous
characteristics....
42
U.
S.
C.
"
6921(
a).
The
Administrator
must
"
promulgate
regulations
identifying
the
characteristics
of
hazardous
waste,
and
listing
particular
hazardous
wastes
(
within
the
meaning
of
section
6903(
5)
of
this
title),
which
shall
be
subject
to
the
provisions
of
this
subchapter."
Id.
"
6921(
b)(
1).
Pursuant
to
"
6921,
the
EPA
may
deem
wastes
hazardous
in
one
of
two
ways:
They
possess
one
of
the
four
hazardous
characteristics
identified
by
the
EPA
in
40
C.
F.
R.
Part
261,
Subpart
C
("
characteristic
wastes"),
see
id.
"
261.3(
a)(
2)(
i)
(
1991),
or
have
been
found
to
be
hazardous
as
a
result
of
an
EPA
rulemaking.
See
id.
Part
261,
Subpart
D
("
listed
wastes").
Chemical
Waste
Management,
Inc.
v.
EPA,
976
F.
2d
2,
7­
8
(
D.
C.
Cir.
1992).
Both
characteristic
hazardous
wastes
and
listed
hazardous
wastes
are
subject
to
regulation
under
Subtitle
C
of
the
RCRA,
which
applies
stringent
management
standards
to
the
generation,
transportation,
treatment,
storage,
and
disposal
of
hazardous
waste.
See
42
U.
S.
C.
""
6921­
6925.
Under
the
"
delisting
process"
provided
in
the
Act,
a
listed
hazardous
waste
will
be
deemed
non­
hazardous
at
a
particular
facility
if
a
petitioner
demonstrates
that
the
waste
no
longer
meets
any
of
the
criteria
for
which
it
was
listed,
and
that
it
is
not
hazardous
because
of
any
other
factor
reasonably
identified
by
the
EPA.
42
U.
S.
C.
"
6921(
f),
40
C.
F.
R.
"
260.22.
In
the
proceeding
here
under
review,
the
EPA
modified
the
regulatory
definition
of
"
hazardous
waste"
to
include,
subject
to
certain
exceptions,
"
a
mixture
of
solid
waste
and
one
or
more
hazardous
wastes,"
40
C.
F.
R.
"
261.3(
a)(
2)(
iv),
and
"
any
solid
waste
generated
from
the
treatment,
storage,
or
dispos­
al
of
a
hazardous
waste,
including
any
sludge,
spill
residue,
ash
emission
control
dust,

or
leachate."
40
C.
F.
R.
"
261.3(
c)(
2)(
i).
The
EPA's
new
definition
went
into
effect
on
an
interim
basis
in
1992.*
57
Fed.
Reg.
7628
(
Mar.
3).
In
1999
the
EPA
proposed
in
substance
to
make
permanent
the
1992
rule,
with
some
minor
alterations
not
relevant
to
this
case.
64
Fed.
Reg.
63,382
(
Nov.
19).
The
EPA
issued
the
Final
Rule
so
doing
on
May
16,
2001.
66
Fed.
Reg.
27,266.
II.
Analysis
We
review
the
Agency's
interpretation
of
a
statute
it
is
charged
with
administering
under
the
two­
step
analysis
of
Chevron
U.
S.
A.
Inc.
v.
Natural
Resource
Defense
Council,
Inc.,
467
U.
S.
837
(
1984).
First
we
must
determine
"
whether
Congress
has
directly
spoken
to
the
precise
question
at
issue,"
id.
at
842
­
here,
whether,
as
the
ACC
argues,
the
statutory
definition
of
"
hazardous
waste"
excludes
substances
mixed
with
or
derived
from
such
waste.
If
the
Congress
has
so
spoken,
then
"
the
court,
as
well
as
the
agency,
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress."
Id.
at
842­
43.
If,
however,
"
the
statute
is
silent
or
ambigu­
ous
with
respect
to
the
specific
issue,"
then
we
must
go
on
to
determine
"
whether
the
agency's
answer
is
based
on
a
per­
missible
construction
of
the
statute."
Id.
at
843.
A.
Chevron
step
one
The
ACC
argues
first
that
the
EPA's
interpretation
is
inconsistent
with
the
statutory
definition
of
hazardous
waste,
42
U.
S.
C.
"
6903(
5),
because
the
rule
brings
within
that
definition
substances
that
do
not
exhibit
a
harmful
"
character­
istic."
The
ACC
points
to
the
"
EPA['
s]
acknowledge[
ment]
that
not
all
mixtures
and
derivatives
pose
hazards
to
human
health
and
the
environment."
Final
Rule,
66
Fed.
Reg.
at
27,276.
According
to
the
ACC,
the
Congress
could
not
possibly
have
meant
to
include
in
the
definition
of
hazardous
waste
solid
wastes
that
do
not
pose
a
threat
to
human
health
or
the
environment.
See
Natural
Resources
Defense
Council,
Inc.
v.
United
States
EPA,
907
F.
2d
1146,
1159
(
D.
C.
Cir.
1990)
("
A
hazardous
waste
...
is
such
only
if
various
factors,
including
the
concentration
of
hazardous
constituents,
actual­
ly
make
it
hazardous
to
human
health
or
the
environment")
(
internal
citation
omitted).
In
our
view,
however,
the
Congress
did
not
speak
directly,
let
alone
clearly,
to
this
issue.
As
the
EPA
points
out,
the
definition
of
"
hazardous
waste"
in
the
statute
has
a
broad
sweep.
See
Environmental
Defense
Fund,
210
F.
3d
at
397.
It
includes
not
only
those
solid
wastes
that
do
pose
hazards
to
human
health
or
the
environment,
but
also
those
that
"
may"
do
so.
In
addition,
the
definition
includes
those
wastes
in
which
the
"
potential
hazard"
becomes
an
actual
hazard
only
if
the
waste
is
"
improperly
treated,
stored,
transported,
or
disposed
of,
or
otherwise
managed."
42
U.
S.
C.
"
6903(
5)(
B).
This
provision
does
not
make
mixtures
and
derivatives
clearly
hazardous
wastes
or
clearly
non­
hazardous
wastes.
The
ele­
ment
of
judgment
imported
into
the
definition
of
hazardous
waste
by
the
use
of
"
may"
and
the
inclusion
of
waste
that
may
be
hazardous
only
if
mismanaged
necessarily
makes
the
statute
ambiguous
on
this
score.
The
ACC
argues
nonetheless
that
the
Final
Rule
simply
cannot
be
squared
with
the
Act
because
it
allows
the
EPA
to
classify
a
substance
as
hazardous
without
"
taking
into
account
toxicity,
persistence,
and
degradability
in
nature,
potential
for
accumulation
in
tissue,
and
other
related
factors,"
as
required
by
"
6921(
a).
Amicus
American
Petroleum
Institute
adds
that
the
legislative
history
of
"
6921
indicates
the
EPA
must
follow
a
two­
step
process
in
order
to
regulate
a
solid
waste
as
hazardous:
it
must
first
determine
the
characteristics
of
a
hazardous
waste
and
then
show
that
a
particular
solid
waste
has
at
least
one
such
characteristic.
See
H.
R.
Rep.
No.
1491,
94th
Cong.,
2d
Sess.
25,
reprinted
in
1976
U.
S.
C.
C.
A.
N.
6238,
6263
("
Only
after
the
criteria
for
determining
what
is
hazard­
ous
has
[
sic]
been
developed
can
the
Administrator
determine
which
specific
wastes
are
hazardous").
According
to
the
EPA,
however,
when
it
lists
a
waste
as
hazardous
it
could,
in
principle,
automatically
list
its
mixtures
and
derivatives
as
well.
That
is,
the
mixture
rule
and
the
derived­
from
rule
are
consistent
with
"
6921
because
mix­
tures
and
derivatives
are
"
a
second
generation
of
the
listed
hazardous
wastes
from
which
they
originate,
[
and]
it
is
rea­
sonable
to
presume,
until
demonstrated
otherwise,
that
these
wastes
are
also
hazardous."
We
think
the
EPA's
response
is
sufficient,
at
the
least,
to
demonstrate
that
the
statute
does
not
directly
answer
the
issue
before
us.
For
the
reason
just
quoted,
"
6921
cannot
be
understood
to
preclude
the
EPA
from
regulating
mixtures
and
derivatives
until
such
time
as
they
may
be
shown
to
be
non­
hazardous.
Some
­

perhaps
most
­
mixtures
and
deriva­
tives
maintain
the
characteristics
of
their
parent
hazardous
waste.
See
Final
Rule,
66
Fed.
Reg.
at
27,274­
75
(
citing
Mark
Eads,
Office
of
Solid
Waste,
EPA,
Analysis
of
RCRA
"
Mixtures
and
Derived­
From"
Hazardous
Waste
Constituent
Data,
which
analyzed
the
EPA's
National
Hazardous
Waste
Constituent
Survey
Database);
Chemical
Waste
Manage­
ment,
Inc.
v.
EPA,
869
F.
2d
1526,
1539
(
D.
C.
Cir.
1989)
("
a
hazardous
waste
does
not
lose
its
hazardous
character
simply
because
it
changes
form
or
is
combined
with
other
sub­
stances").
Any
mixture
or
derivative
that
does
not
remain
hazardous
may
be
exonerated
either
by
an
explicit
exclusion
in
the
initial
listing
or
through
the
delisting
process
of
"
6921(
f).
In
sum,
neither
the
definition
of
"
hazardous
waste"
nor
"
6921
answers
the
question
whether
that
definition
or
any
other
provision
of
the
RCRA
authorizes
the
EPA
to
regulate
a
mixture
or
derivative
that
may
be,
but
has
not
yet
been
shown
to
be,
a
hazardous
waste.
We
must
go
on
to
deter­
mine,
therefore,
whether
the
EPA's
interpretation
of
42
U.
S.
C.
"
6903(
5)
is
reasonable.
B.
Chevron
step
two
The
EPA
persuasively
argues
that
it
reasonably
interpret­
ed
the
term
"
hazardous
waste"
presumptively
to
include
mixtures
and
derivatives:
"[
The
Final
Rule]
assure[
s]
that
hazardous
mixtures
and
derivatives
do
not
imprudently
es­
cape
Subtitle
C
requirements."
We
agree.
The
Final
Rule
fulfills
the
purpose
for
which
the
Congress
passed
the
RCRA,
namely
to
subject
hazardous
waste
to
"
cradle­
to­
grave"
regu­
lation
in
order
to
protect
public
health
and
the
environment.
United
Technologies,
821
F.
2d
at
716.
To
that
end,
too,
the
Congress
"
requir[
ed]
that
hazardous
waste
be
properly
man­
aged
in
the
first
instance
thereby
reducing
the
need
for
corrective
action
at
a
future
date."
42
U.
S.
C.
"
6902(
a)(
5).
We
also
agree
that,
because
many
mixtures
of
and
derivatives
from
hazardous
wastes
are
themselves
hazardous,
it
is
rea­
sonable
for
the
EPA
to
assume
that
all
such
mixtures
and
derivatives
are
hazardous
until
shown
otherwise.
For
that
reason
we
have
already
endorsed
a
similar
action
by
the
EPA
with
respect
to
hazardous
wastes
that
mix
with
soil
and
groundwater.
See
Chemical
Waste
Management,
869
F.
2d
at
1540.
Placing
the
burden
upon
the
regulated
entity
to
show
the
lack
of
a
hazardous
characteristic
in
a
mixture
or
deriva­
tive
it
manages
avoids
placing
upon
the
EPA
what
the
agency
persuasively
describes
as
"
the
nearly
impossible
affirmative
burden
of
anticipating
and
analyzing,
in
a
listing
decision,
the
hazardousness
or
non­
hazardousness
[
of]
every
conceivable
mixture
or
derivative
that
a
generator
might
create."
In
addition,
the
dozen
or
more
exceptions
already
contained
in
the
rule
­
such
as
those
for
used
oil,
40
C.
F.
R.
"
261.3(
a)(
2)(
v),
certain
laboratory
wastewaters,
id.
"
261.3(
a)(
2)(
iv)(
E),
and
certain
carbamate
wastewaters,
id.
"
261.3(
a)(
2)(
iv)(
F)­(
G)
­
prevent
it
from
casting
too
wide
a
net
over
nonhazardous
mixtures
and
derivatives.
The
ACC
objects
that
the
delisting
mechanism
does
not
provide
any
realistic
relief
to
the
potential
over­
inclusiveness
of
the
rule
because
it
is
"
slow,
onerous,
ineffective,
and
at
times
controversial."
Office
of
Solid
Waste
and
Emergency
Response,
Environmental
Protection
Agency,
The
Nation's
Hazardous
Waste
Management
Program
at
a
Crossroads:
The
RCRA
Implementation
Study
39
(
1990).
The
cumbersome
nature
of
the
delisting
process,
however,
says
nothing
about
the
reasonableness
of
the
EPA's
interpretation
of
the
statute.
And
in
any
event,
even
if
the
delisting
process
were
impossi­
bly
cumbersome,
a
party
could
still
head
off
the
initial
listing
of
the
mixture
or
derivative
by
proposing
that
the
initial
listing
of
a
particular
waste
as
hazardous
include
the
qualifi­

cation
that
certain
specified
mixtures
and
derivatives
are
not
included
in
the
listing.
The
ACC
claims
the
EPA
has
available
to
it
other
"
lawful
and
adequate
alternatives
to
the
mixture
rule
and
the
de­
rived­
from
rule,"
such
as
adopting
broader
listings
or
modify­
ing
the
current
prohibition
on
dilution
of
hazardous
waste.
See
40
C.
F.
R.
"
268.3.
We
disagree
because
the
EPA
has
shown
not
only
that
the
Final
Rule
prevents
hazardous
mixtures
and
derivatives
from
evading
proper
treatment
un­
der
the
RCRA
but
also
that
the
alternatives
proposed
by
the
ACC
would
not
be
as
effective.
For
example,
using
broader
listings
would
place
upon
the
EPA
the
very
administrative
burden
we
deemed
above
to
be
impractical;
the
Agency
would
have
to
identify
not
only
the
hazardous
waste
but
also
to
determine
whether
all
second­
generation
wastes
are
haz­
ardous.
The
anti­
dilution
rule
makes
unlawful
the
expedient
of
simply
diluting
hazardous
waste
in
order
to
lower
the
concentration
of
hazardous
constituents
and
thereby
circum­
vent
regulation
under
the
RCRA.
The
ACC
does
not
explain
how
modifying
the
anti­
dilution
rule
would
make
it
an
effec­
tive
substitute
for
the
Final
Rule.
Finally,
the
ACC
argues
that
the
Final
Rule
imposes
a
significant
cost
upon
industry
without
any
showing
of
a
concomitant
public
benefit.
The
ACC,
however,
does
not
identify
any
provision
of
the
RCRA
requiring
the
benefits
of
a
regulation
to
equal
or
exceed
its
costs.
And
the
EPA
has
submitted
evidence
that
some
mixtures
and
derivatives
dis­
play
the
hazardous
characteristics
of
their
parent
waste,
see
Final
Rule,
66
Fed.
Reg.
at
22,274­
75,
which
suggests
the
rule
will
provide
at
least
some
added
protection
of
the
envi­
ronment
and
public
health.
We
think
the
Congress
wanted
the
EPA,
in
deciding
which
substances
to
regulate
as
"
hazardous"
under
the
RCRA,
to
err
on
the
side
of
caution,
see
42
U.
S.
C.
"
6901(
b)(
6);
the
Final
Rule
is
a
reasonable
exercise
of
such
caution.
There­
fore,
we
cannot
say
the
rule
is
an
unreasonable
interpretation
of
the
agency's
statutory
mandate
comprehensively
to
regu­
late
hazardous
waste.
III.
Conclusion
For
the
foregoing
reasons,
the
petition
for
review
is
Denied.
FOOTNOTES
*
The
ACC
also
challenges
the
1992
interim
rule.
The
EPA
suggests
this
challenge
is
untimely
and
moot,
and
the
ACC
lacks
standing.
We
conclude
that
we
have
jurisdiction,
see
Columbia
Falls
Aluminum
Co.
v.
EPA,
139
F.
3d
914,
921
(
D.
C.
Cir.
1998)
("
Once
an
agency
reopens
an
issue
...
a
new
review
period
is
triggered"),
and
we
deny
the
petition
for
review
of
the
1992
rule
for
the
same
reasons
we
deny
the
challenge
to
the
Final
Rule.

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