# Association of Battery Recyclers, Inc. v. U.S. Environmental Protection Agency > Court of Appeals for the D.C. Circuit · April 21, 2000 · 208 F.3d 1047 URL: https://www.frixlaw.com/law-library/cases/6985389 ## Case - **Full name:** ASSOCIATION OF BATTERY RECYCLERS, INC. v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, U.S. Environmental Protection Agency - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** April 21, 2000 - **Citations:** 208 F.3d 1047; 341 U.S. App. D.C. 78; 30 Envtl. L. Rep. (Envtl. Law Inst.) 20512; 50 ERC (BNA) 1385; 2000 U.S. App. LEXIS 7203 - **Precedential status:** Published - **Opinion:** Dissent by Randolph - **Judges:** Ginsburg, Randolph, Silberman - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6985389 ## How later opinions describe it (automated extraction) - holding that "all we can say with certainty is that at least some of the secondary material EPA seeks to regulate" is not discarded - holding that secondary materials are not solid waste if they are "destined for reuse as part of a continuous industrial process” - explaining that “immediate” in AMC means “direct,” not instantaneous ## Opinion text 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 *1065 application of TCLP to MGP wastes.” Maj. op. at 1060. 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 satisfied 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 obviously, 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 wastes, which the court sustains. 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 1061-62. 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 examples 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 evidence 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, kerosene, and other wastes typically produced at MGP sites. The majority’s concern seems to be that these two examples did not involve “remediation waste,” that is, waste from clean up operations after the MGP plants ceased functioning. Maj. op. at 1063. 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 Toxicity Characteristic Leaching Procedure to Mineral Processing Wastes app. D, yet MGPs “stopped producing waste about 40 years ago,” maj. op. at 1063; 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 *1066 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 manufactured gas plant wastes, despite abundant evidence showing a rational relationship. I therefore dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6985389. Public record. Not legal advice.