United States Court of Appeals, District of Columbia Circuit
April 9, 2019
Petition for Review of Administrative Action of the United
States Environmental Protection Agency
Desai argued the cause for petitioners. With her on the
briefs was James S. Pew.
M. Rosen, Attorney, U.S. Department of Justice, argued the
cause for respondents. With him on the brief were Jeffrey
Bossert Clark, Assistant Attorney General, and Jonathan
Brightbill, Deputy Assistant Attorney General.
Sayre Llewellyn argued the cause for intervenor-respondents.
With him on the brief were Stacy R. Linden, Matthew A.
Haynie, Richard S. Moskowitz, Wayne J. D'Angelo, Peter C.
Tolsdorf, Timothy K. Webster, Leslie A. Hulse, Aaron J.
Wallisch, Kevin A. Gaynor, John P. Elwood, and Jeremy C.
Marwell. Joshua S. Johnson entered an appearance.
Before: Henderson and Rogers, Circuit Judges, and Sentelle,
Senior Circuit Judge.
Rogers, Circuit Judge.
1976, Congress enacted the Resource Conservation and Recovery
Act of 1976 ("RCRA"), as amended, 42 U.S.C.
§§ 6901-6992k, to address the environmental and
health risks associated with hazardous solid waste. Subtitle
C of RCRA required the Environmental Protection Agency to
issue regulations governing the storage, treatment, and
disposal of "solid waste," which was defined as
"discarded" material, 42 U.S.C. § 6903(27).
Among RCRA's stated objectives was "minimizing the
generation of hazardous waste . . . by encouraging process
substitution, materials recovery, properly conducted
recycling and reuse, and treatment." Id.
§ 6902(a)(6) (emphasis added). In 2008, EPA promulgated
a final rule that treated material transferred from a waste
generator to a third-party reclaimer as legitimately
recycled, rather than "discarded" and subject to
Subtitle C regulation, if several conditions were met. This
Transfer-Based Exclusion was replaced by another exclusion in
2015, reinstated by the court in 2017, and reissued by EPA as
modified in 2018.
petitioners consider the Transfer-Based Exclusion to be
insufficiently protective of human health and the environment
and bring two challenges: First, they contend the
Transfer-Based Exclusion exceeds EPA's statutory
authority under RCRA. In their view, a generator
"discards" hazardous material whenever it pays a
reclaimer to accept the material. Second, they contend the
Transfer-Based Exclusion fails arbitrary and capricious
review because EPA has not provided a reasoned explanation
for treating hazardous material differently based on whether
it is sent to a reclaimer instead of a storage, treatment, or
disposal facility, and because EPA has already identified
deficiencies in the Transfer-Based Exclusion.
initially raises a host of threshold objections to
petitioners' contentions, some of which industry
intervenors join. Upon examination, we conclude none is
persuasive. On the merits, EPA responds that neither the
statutory text, case law, nor empirical data supports
petitioners' contentions. We conclude, in view of this
court's precedent, that EPA did not act contrary to RCRA
in adopting the Transfer-Based Exclusion because hazardous
secondary materials are not necessarily "discarded"
each time they are transferred from a generator to a
reclaimer along with payment. Further we conclude that EPA
has provided a reasoned explanation for applying different
standards to materials that are not yet part of the waste
disposal problem RCRA addresses where they meet conditions
EPA concluded were adequate for safe transfer and legitimate
recycling. The Transfer-Based Exclusion therefore survives
arbitrary and capricious review. Accordingly, we deny the
petition for review.
background is necessary before addressing the threshold
objections to petitioners' challenge.
2008, EPA promulgated a final rule intended to
"encourage and expand the safe, beneficial recycling of
additional hazardous secondary materials," adopting the
Generator-Controlled Exclusion and the Transfer-Based
Exclusion. The Exclusions deal with "reclamation,"
a type of recycling that occurs when secondary material is
processed to recover a usable product or is regenerated. 40
C.F.R. § 261.1(c)(4), (7). Secondary materials can
include byproducts, spent materials, and sludges.
Id. § 261.1(c)(1)- (3). The final rule allowed
generators of hazardous secondary materials to avoid Subtitle
C regulation of those materials where the generator controls
the recycling or where the generator transfers the materials
to an off-site reclaimer. Revisions to the Definition of
Solid Waste, 73 Fed. Reg. 64, 668, 64, 669 (Oct. 30,
2008) ("2008 Rule"). Under the Transfer-Based
Exclusion, generators, transporters, and reclaimers must meet
"Transfer Conditions" to ensure hazardous materials
are transferred securely and are actually recycled.
Id. at 64, 669- 70. For example, a generator must
audit the reclaimer for compliance with proper recycling
practices. Id. at 64, 683. "Legitimacy
Factors" must also be satisfied so recycling is
legitimate and not a "sham." Id. at 64,
670. The history of the Rule is described in American
Petroleum Institute v. EPA ("API
III"), 862 F.3d 50 (D.C. Cir. 2017).
it to say, environmental groups challenged the 2008 Rule as
too lenient, and industry groups challenged the Rule as too
strict. EPA eventually replaced the Transfer-Based Exclusion
in 2015 with a similar but more restrictive Verified Recycler
Exclusion, allowing generators to avoid Subtitle C
requirements only when they transfer materials to verified
recyclers that had obtained either permits or variances.
Definition of Solid Waste, 80 Fed. Reg. 1694, 1695
(Jan. 13, 2015) ("2015 Rule"). Environmental and
industry groups challenged this Exclusion, and in API
III, the court vacated the permit and variance
provisions, reinstated the 2008 Transfer-Based Exclusion, and
upheld other requirements regarding emergency preparedness
and containment added in 2015. On rehearing, the court
expanded the Transfer-Based Exclusion to cover spent refinery
catalysts. American Petroleum Institute v. EPA
("API IV"), 883 F.3d 918 (D.C. Cir. 2018).
Without further notice and comment, EPA then published in
2018 the Transfer-Based Exclusion as modified by this court,
which petitioners now challenge. Response to Vacatur of
Certain Provisions of the Definition of Solid Waste
Rule, 83 Fed. Reg. 24, 664 (May 30, 2018) ("2018
Rule"). The court is presented with an unusual time warp
in considering petitioners' challenges to the
Transfer-Based Exclusion given the passage of 10 years during
which EPA considered policy concerns and the court addressed
court first must address the threshold objections raised by
EPA and joined in part by industry intervenors.
Standing. To satisfy "the irreducible
constitutional minimum of standing," a party must
establish (1) that it has "suffered an injury in
fact" that is both "concrete and
particularized" and "actual or imminent," (2)
that the injury is "fairly trace[able] to the challenged
action of the defendant," and (3) that the injury is
"likely . . . [to] be redressed by a favorable
decision." Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992) (first alteration in original). Contrary
to EPA's objection, petitioners have established
organization to bring suit on behalf of its members, it must
show (1) at least one of "its members would otherwise
have standing to sue in [his or her] own right," (2)
"the interests it seeks to protect are germane to the
organization's purpose," and (3) "neither the
claim asserted nor the relief requested requires the
participation of individual members." Defs. of
Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir.
2013). Petitioners' members live, commute, work, and
recreate near generators of hazardous materials that used the
Transfer-Based Exclusion before 2015 or that are likely to
use it now. See Feldman Decl. ¶¶ 3-4; Ford
Decl. ¶ 3; Kilgour Decl. ¶¶ 5-7; Rhodes Decl.
¶¶ 2-3. By parity of reasoning, just as the court
has recognized industry groups' standing based on injury
caused by elimination of parts of the Exclusion,
e.g., API III, 862 F.3d at 66, the
Transfer-Based Exclusion deprives petitioners' members of
Subtitle C protections that Congress deemed necessary to
address health or environmental risks. Congress acknowledged
the potential threat to human health and the environment
associated with hazardous wastes when it required EPA to
promulgate regulations governing their storage, treatment,
and disposal. 42 U.S.C. § 6903(5)(B). By definition, the
existing Subtitle C regulations are those EPA has determined
to be "necessary to protect human health and the
environment." Id. §§ 6922(a),
6923(a), 6924(a). In their declarations, petitioners'
members describe how their reasonable fear of those same
health or environmental risks impairs their ability to feel
safe and to enjoy the outdoors. Several declarants state that
they spend less time outdoors exercising, gardening, walking
their dogs, or fishing, or do not enjoy these outdoor
activities as much, due to their worries about health and
environmental harms. Cheung Decl. ¶¶ 10- 11;
Feldman Decl. ¶¶ 6-9; Ford Decl. ¶¶ 6-8;
Kilgour Decl. ¶ 10.
court has concluded in similar circumstances that
environmental petitioners have standing to challenge
regulatory actions under RCRA. In Sierra Club v.
EPA, 755 F.3d 968 (D.C. Cir. 2014), the court held that
similar declarations explaining "individuals'
particularized fears of serious health and environmental
consequences" and "their individual behavioral
changes" resulting from the regulatory change
established injury in fact for Article III standing.
Id. at 974-75. Similarly, in NRDC v. EPA,
755 F.3d 1010 (D.C. Cir. 2014), the court deemed sufficient
"declarations of long-time members who spend time near
facilities which, as a result of the [challenged] Exclusion,
now burn comparable fuels" and who "spend less time
outdoors" due to their "concern about the
emissions' effects on their health." Id. at
1016-17. If a challenged regulation causes individuals to
reasonably fear health or environmental harms and thus
prevents them from using or enjoying the aesthetic or
recreational value of their area, ...