American Mining Congress v. United States Environmental Protection Agency

MIKVA, Circuit Judge,

dissenting:

The court today strains to overturn the Environmental Protection Agency’s inter *214 pretation of the Resource Conservation and Recovery Act to authorize the regulation of certain recycled industrial materials. Under today’s decision, the EPA is prohibited from regulating in-process secondary materials that contribute to the ominous problem that Congress sought to eradicate by passing the RCRA. In my opinion, the EPA has adequately demonstrated that its interpretation is a reasonable construction of an ambiguous term in a statute committed to the agency’s administration. We therefore are obliged to defer to the agency’s interpretation under the principles of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), and INS v. Cardoza-Fonseca, — U.S. -, 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987). I dissent.

I.

I agree with the majority that the case turns on the definition of solid waste as “discarded material” in RCRA. See 42 U.S.C. § 6903 (27). On its face, this definition would not necessarily encompass the in-process secondary materials at issue in this case. However, the EPA has pointed us to an important statutory provision and a key passage from the legislative history that strongly support the agency’s interpretation. At a minimum, they establish that the issue is ambiguous, so that we must defer to the agency’s solution if it is reasonable.

Section 6924 of RCRA, when carefully parsed, provides direct support for the EPA's interpretation. Two provisions in section 6924 are especially relevant to EPA’s claim. Section 6924(r)(2) provides an exemption from RCRA’s general label-ling requirement for materials “generated and reinserted onsite into the refining process.” The accompanying legislative history specifies that the provision is a special and narrow exemption that “applies only to wastes generated on-site in the refining process itself.” H.R. No. 198, 98th Cong., 2d Sess. at 43 (1984), U.S.Code Cong. & Admin.News 1984, p. 5602. The clear implication of this statutory provision is that RCRA establishes the EPA’s general jurisdiction to regulate wastes generated on-site but cabins that power in one particular area. If, as the majority contends, these materials were clearly meant to be beyond EPA’s regulatory scope anyway, this exemption would be unnecessary.

The majority acknowledges the “marginal force” of the EPA’s reading of section 6924(r)(2). Majority opinion (Maj. op.) at 1188. That would appear to be an implicit concession that the provision at least provokes ambiguity about the meaning of solid waste under RCRA. The majority then tries to finesse its way around the provision by claiming that it applies only to materials that already have been abandoned by the manufacturer and transported to a hazardous waste treatment facility. Maj. op. at 1188. A neighboring provision, however, plainly demonstrates the inadequacy of the majority’s explanation. Section 6924(q)(2)(A) specifies that subsection (r), the labelling provision, normally “shall not apply to petroleum refinery wastes containing oil which are converted into petroleum coke at the same facility at which such wastes were generated.” (emphasis added.) This provision excepts from the labelling requirements one particular kind of material that is generated on-site and then reintroduced into the refining process. The majority’s interpretation of subsection (r) makes nonsense of Congress’ carefully drawn exception. If subsection (r) were intended to apply only to abandoned materials, 6924(q)(2)(A) would go without saying. The provision therefore indicates that subsection (r) in particular, and RCRA in general, are intended to reach certain materials recycled on-site.

More generally, 6924(q)(2)(A) refers directly to wastes that are generated in the refining process and then put to further beneficial use by being converted to petroleum coke. It provides specific textual evidence that RCRA’s definition of the pivotal term “waste” comprises at least some materials that are generated in a primary process and then recycled into another on-site process.

The majority attempts to square its position with the apparently irreconcilable di *215 rective in § 6924(q)(2)(A) by arguing that “[u]nder our interpretation, the labelling requirement can indeed be applied to materials generated (presumably in a recycling procedure) on-site at a hazardous waste treatment facility.” Maj. op. at 1188 n. 16. The majority apparently is asserting that Congress’ use of the term “wastes” in 6024(q)(2)(A) was meant to refer only to wastes generated from other wastes. This highly conclusory and unnatural reading demonstrates that the majority has lost its way through this complex statute. The complexity of a statute does not give courts additional leeway to ignore the deference due an agency interpretation; on the contrary, when the complexity stems from technical definitions and procedures, that deference is enhanced.

The legislative history of the 1984 RCRA amendments also cuts firmly in EPA’s favor. The version of the bill passed by the House contained a section directing the agency to regulate hazardous wastes that are used, reused, recycled, or reclaimed. H.R. 2867, § 8. (This provision eventually was deleted on the ground that RCRA already provided the EPA with authority to regulate these materials. See H.R. Conf. Rep. No. 1133, 98th Cong., 2d Sess. at 82.) The report accompanying this provision explained:

This provision is intended to reaffirm the Agency’s existing authority to regulate as [sic] hazardous waste to the extent it may be necessary to protect human health and the environment. The Committee affirms that RCRA already provides regulatory authority over these activities (which authority the Agency has exercised to a limited degree) and in this provision is amending to clarify that materials being used, reused, recycled, or reclaimed can indeed be solid and hazardous wastes and that these various recycling activities may constitute hazardous waste treatment, storage, or disposal.

H.R.Rep. No. 198, 98th Cong., 2d Sess. (1984), U.S.Code Cong. & Admin.News 1984, p. 5605 (emphasis added).

It is hard to see how the majority can hold to its position that on-site recycled materials can never be waste in the face of this clear legislative history to the contrary. The majority grudgingly allows that this language is “ambiguous at best,” maj. op. at 1191, apparently forgetting that EPA has only to demonstrate ambiguity to earn its reasonableness review. The majority then posits the theory that the legislative history pertains only to materials that already have been abandoned and thereby become hazardous waste. This interpretation is not credible. The legislative history states that materials being recycled can be solid and hazardous wastes. If the materials referred to already were hazardous wastes, this statement would be absurd. The statement rather indicates that recycled materials can constitute solid waste where they present the dangers to human health and the environment that RCRA is designed to control.

In sum, EPA has adduced support for its interpretation of the pivotal RCRA provision in other sections of the statute and in the accompanying legislative history. Moreover, contrary to the majority’s gratuitous suggestion that passages from committee reports are of questionable value in discerning legislative intent, see maj. op. at 1191, n. 22, such reports afford us valuable guidance. They usually provide a considered and bipartisan commentary that illuminates the close issues courts are frequently called upon to adjudicate.

I acknowledge that the majority cites other evidence that casts some doubt on the agency’s interpretation. But this is a concession that the agency can afford, while the majority cannot. EPA need demonstrate only that its definition of solid waste does not clearly contradict congressional intent. Section 6924 as well as the key piece of legislative history cited above provide .ample evidence for that modest proposition. Chevron therefore requires us to give effect to the agency interpretation if it is reasonable.

In my opinion, the EPA’s interpretation of solid waste is completely reasonable in light of the language, policies, and legisla *216 tive history of RCRA. See United States v. Riverside Bayview Homes, 474 U.S. 121 , 106 S.Ct. 455, 461 , 88 L.Ed.2d 419 (1986). Congress had broad remedial objectives in mind when it enacted RCRA, most notably to “regulat[e] the treatment, storage, transportation, and disposal of hazardous wastes which have adverse effects on the environment.” 42 U.S.C. § 6902 (4). The disposal problem Congress was combatting encompassed more than just abandoned materials. RCRA makes this clear with its definition of the central statutory term “disposal”:

the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

42 U.S.C. § 6903 (3). This definition clearly encompasses more than the everyday meaning of disposal, which is a “discarding or throwing away.” Webster’s Third International Dictionary 654 (2d ed. 1981). The definition is functional: waste is disposed under this provision if it is put into contact with land or water in such a way as to pose the risks to health and environment that animated Congress to pass RCRA. Whether the manufacturer subjectively intends to put the material to additional use is irrelevant to this definition, as indeed it should be, because the manufacturer’s state of mind bears no necessary relation to the hazards of the industrial processes he employs.

Faithful to RCRA’s functional approach, EPA reasonably concluded that regulation of certain in-process secondary materials was necessary to carry out its mandate. The materials at issue in this case can pose the same risks as abandoned wastes, whether or not the manufacturer intends eventually to put them to further beneficial use. As the agency explained, “[sjimply because a waste is likely to be recycled will not ensure that it will not be spilled or leaked before recycling occurs.” J.A. 67. The storage, transportation, and even recycling of in-process secondary materials can cause severe environmental harm. Indeed, the EPA documented environmental disasters caused by the handling or storage of such materials. See, e.g., J.A. 1729-30, 1721. It also pointed out the risk of damage from spills or leaks when certain in-process secondary materials are placed on land .or in underground product storage. See J.A. 68.

Moreover, the agency’s action is carefully aligned with Congress’ functional approach to problems of waste disposal. The agency is not seeking to regulate all recycled materials. Rather, it has promulgated a complicated scheme of different categories so as to regulate materials only when they present the same types of environmental risks RCRA seeks to correct. See J.A. 68-70. EPA stressed that “to determine if a secondary material is a RCRA solid waste when recycled, one must examine both the material and the recycling activity involved. A consequence is that the same material can be a waste if it is recycled in certain ways, but would not be a waste if it is recycled in other ways.” J.A. 69. Thus, the agency has sought to regulate these materials only when they present the risks Congress was combatting in RCRA.

I believe this case is controlled by United States v. Riverside Bayview Homes, 474 U.S. 121 , 106 S.Ct. 455 , 88 L.Ed.2d 419 (1986). In Riverside Bayview, the EPA offered an interpretation of “waters” that appeared at some tension with everyday usage. 106 S.Ct. at 462 (“On a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet or otherwise, as waters.”). The Court therefore turned to the statutory scheme and legislative history of the Clean Water Act. It considered the agency’s interpretation against the background of Congress’ goals in enacting the statute. The Court found in the statute “a broad, systemic view of the goal of maintaining and improving water quality.” Id. It then evaluated the reasonableness of the agency’s interpretation in light of that goal. The Court wrote:

*217 We cannot say that the Corps’ conclusion that adjacent wetlands are inseparably bound up with the “waters” of the United States — based as it is on the Corps’ and EPA’s technical expertise — is unreasonable____ The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually innundate the wetlands____ We cannot say that the Corps’ judgment on these matters is unreasonable.

Id. at 463.

Similarly, in this case the EPA has interpreted solid waste in a manner that seems to expand the everyday usage of the word “discarded.” Its conclusion, however, is fully supportable in light of the statutory scheme and legislative history of RCRA. The agency concluded that certain on-site recycled materials constitute an integral part of the waste disposal problem. This judgment is grounded in the EPA’s technical expertise and is adequately supported by evidence in the record. The majority nevertheless reverses the agency because it believes that the materials at issue “have not yet become part of the waste disposal problem.” Maj. op. at 1186. This declaration is nothing more than a substitution of the majority’s own conclusions for the sound technical judgment of the EPA. The EPA’s interpretation is a reasonable construction of an ambiguous statutory provision and should be upheld. Chevron and Cardoza-Fonseca are totally neutered by review such as the majority today affords.

I dissent.