# Petition for Writ of Certiorari — American Petroleum Institute v. United States Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 849

## Text

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

AMERICAN PETROLEUM INSTITUTE,
Petitioner,
Wo

U.S. ENVIRONMENTAL PROTECTION AGENCY, Ct @l«
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CJUURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

G. WILLIAM FRICK CARTER G. PHILLIPS *

RALPH J. COLLELI SAMUEL I. GUTTER
AMERICAN PETROLEUM MARK E. HADDAD

INSTITUTE SIDLEY & AUSTIN

1220 L Street, N.W. 1722 Eye Street, N.W.
Washington, D.C. 20005 Washington, D.C. 20006
(202) 682-8252 (202) 429-4000

July 12, 1990 * Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether Chevron v. Natural Resources Defense Coun-
cil, 467 U.S. 837 (1984), permits a reviewing court,
which has found no reason other than politicai pressure
for an agency’s decision to abandon its proposed rule in
favor of a different final rule, to supply the court’s own
post-hoc rationale for the final rule and remand to the
agency for its summary concurrence.

\

(i)

ii
PARTIES

The parties to the proceeding below were the Hazard-
ous Waste Treatment Council, the Chemical Manufac-
turers Association (CMA), the Natural Resources De-
fense Council, Chemical Waste Management, Inc., Che-
meteo, Inc., and the United States Environmental Pro-
tection Agency. The intervenors below were the Ameri-
ean Petroleum Institute, the Edison Electric Institute
and the Halogenated Solvents Industry Alliance. The
petitioner here, American Petroleum Institute (API), is
a non-profit trade association whose membership includes
over 200 companies engaged in all aspects of the petro-
leum industry, including exploration, production, refin-
ing, transportation and marketing. API does not have
any outstanding publicly held securities. Nor does API
have any publicly owned parent, subsidiary, or affiliate.

TABLE OF CONTENTS

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PARTIES ........

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OPINIONS AND NOTICES BELOW ..........00000000000.....

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STATUTORY PROVISIONS INVOLVED ....................

STATEMENT

REASONS FOR GRANTING THE PETITION

CONCLUSION

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(iii)

10

18

iv

TABLE OF AUTHORITIES

Cases Page
American Textile Mfrs. Inst. v. Donovan, 452 U.S.
GI, GI se sissientsinhiteacaniceiictasdtdeietacpeioialaitaetbenianibiadas 14
Burlington Truck Lines v. United States, 371 U.S.
SEI HEI uss hoesniniishninchintaitealaeaneia lich Minmactbeniiaiiaasiaie 12
Chevron V. Natural Resources Defense Council, 467
ee, Ge i aidleaenienianineionmnel passim.
Citizens to Preserve Overton Park v. Volpe, 401
a: ll 14, 16
Federal Power Comm’n V. Texaco, 417 U.S. 380
SE SIPTIIIET -cinstaeil cthasadliashiemnciltpaihsidacteibeiisadebe ieeantasicsebiaa deteiaiaciids 12
Food Marketing Inst. v. ICC, 587 F.2d 1285
RRS re ces. eee Seer 15
Motor Vehicle Mfrs. Ass’n Vv. State Farm Mutual
Auto. Ins. Co., 4638 U.S. 29 (1988) ...................... 12
SEC v. Chenery Corp., 318 U.S. 80 (1948) —.......... 10
SEC v. Chenery Corp., 332 U.S. 194 (1947) ..10, 12, 18, 14
Statutes
I lela eats 2
Oe re I i ie 5
BR Wremeh, lee, GUTS CRG) cnn nnnnnacanncccceccnccencceseeecssss 5

Hazardous and Solid Waste Amendments of 1984,
Pub. L. No. 98-616, 98 Stat. 3221 (codified as
amended at 42 U.S.C. §§ 6921-6939 (1984)) _.... 2,3
Resource Conservation and Recovery Act of 1978,
Pub. L. No. 94-580, 90 Stat. 2795 (codified as
amended at 42 U.S.C. §§ 6901-6992 (1982 &
SS TE SINEE snibutnncniccctsnsddlendeicndaninieatinatnecsetnee 3,13

Other Authorities

EPA Plan to Carry Out Waste Law’s Land Ban
“Fatally Flawed,” Members of Congress Say,
Daily Rep. for Execs. (BNA) No. 47 (March 11,
SIE ses DicssstasehsCcaiiciaintiainbaplanictuaddnes Mididaisithaainaidiabictiasaades 5

IN THE
Supreme Court of the United States

OCTOBER TERM, 1990

No. 90

AMERICAN PETROLEUM INSTITUTE,
Petitioner,
V.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner respectfully requests that a writ of certio-
rari issue to review the judgment and opinion of the
United States Court of Appeals for the District of Co-
lumbia Circuit.

OPINION AND NOTICES BELOW

The opinion of the court of appeals is reported at 886
F.2d 355 (D.C. Cir. 1989) and is included in the Appen-
dix at pp. la to 41a. The order of that court summarily
affirming the agency’s “Notice of Compliance” and enter-
ing judgment dismissing the petitions for review is not
reported and is included in the Appendix at pp. 42a to
44a. The Final Rule challenged on review in the court
of appeals has not been codified; it is published at 51

2

Fed. Reg. 40,572 (1986), and is reproduced in relevant
part in the Appendix at pp. 45a to 48a. The Proposed
Rule is published at 51 Fed. Reg. 1602 (1986), and is
reproduced in relevant part in the Appendix at pp. 49a
to 64a. The “Notice Of Compliance” is published at 55
Fed. Reg. 6640 (1990), and is included in the Appendix
at pp. 65a to 77a.

JURISDICTION

The opinion of the court of appeals remanding to the
agency but staying judgment and the issuance of its
mandate was entered on September 15, 1989. The
agency’s Notice of Compliance with the court’s remand
was filed on February 12, 1990. The order of the court
summarily accepting the Notice of Compliance and enter-
ing final judgment dismissing the petitions for review
was filed on March 14, 1990. On June 4, 1990, the Chief
Justice granted an extension of time within which to file
a petition for a writ of certiorari to and including July
12, 1990. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED
Title 42 U.S.C. § 6924(m) provides in relevant part:

(1) [T]he Administrator shall, after notice and an
opportunity for hearings and after consultation with
appropriate Federal and State agencies, promulgate
regulations specifying those levels or methods of
treatment, if any, which substantially diminish the
toxicity of the waste or substantially reduce the like-
lihood of migration of hazardous constituents from
the waste so that short-term and long-term threats
to human health and the environment are minimized.

(2) If such hazardous waste has been treated to the
level or by a method specified in regulations prom-
ulgated under this subsection, such waste or residue
thereof shall not be subject to any prohibition prom-
ulgated under subsection (d), (e), (f), or (g) of
this section and may be disposed of in a land dis-

3

posal facility which meets the requirements of this
subchapter.

STATEMENT

1. In 1984, Congress amended the Resource Conserva-
tion and Recovery Act of 1978 (“RCRA”), Pub. L. No. 94-
580, 90 Stat. 2795 (codified as amended at 42 U.S.C. §§ 6901-
6992 (1982 & Supp. IV 1986)), to address, inter alia,
the disposal on land of hazardous wastes. Hazardous and
Solid Waste Amendments of 1984 (“HSWA”), Pub. L.
No. 98-616, 98 Stat. 3221 (codified as amended at 42
U.S.C. §§ 6921-6939 (1984)). In the process, Congress
amended section 3004 of RCRA to restrict or prohibit
land disposal of such wastes except under circumstances
defined by the statute or by Environmental Protection
Agency (“EPA”) regulations. In particular, Congress
required EPA to “promulgate regulations specifying
those levels or methods of treatment, if any, which sub-
stantially diminish the toxieity of the waste or substan-
tially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-
term threats to human health and the environment are
minimized.” RCRA § 3004(m); 42 U.S.C. § 6924(m).
Under the statute, compliance with EPA’s treatment
standards would permit land disposal to continue.

2. On January 14, 1986, EPA issued a Proposed Rule
setting forth a framework for establishing hazardous
waste treatment standards that would permit land dis-
posal under § 3004(m). See App. 49a (hereinafter “Pro-
posed Rule”). The Proposed Rule combined two basic ap-
proaches to environmental regulation: risk-based stand-
ards and technology-based standards. Risk-based stand-
ards, which the agency labeled “screening levels,” iden-
tify the maximum concentration of a particular pollu-
tant that can be disposed on land without posing a sig-
nificant threat to human health or the environment. /d.
at 56a-59a. Technology-based standards identify the
concentration of a particular pollutant that will result

4

from treatment with the Best Demonstrated Available
Technology, or “BDAT.” Jd. at 52a-56a.

The agency proposed to rely chiefly on screening levels
to set its treatment standards: treatment standards
would be set at screening levels where these levels indi-
cated that less treatment was needed to protect health
and the environment than would be achieved by use of
BDAT, as well as where far more effective treatment
than could be achieved by BDAT would be needed. The
agency would use BDAT levels in setting the treatment
standard only where BDAT levels, although less effective
than an ideal risk-based level, would achieve “substan-
tial reductions in toxicity or mobility and [would] not
pose greater risks than land disposal.” Jd. at 59a. In
that situation, the agency would still use the screening
level “‘as a goal that may be reached as new technologies
emerge.” Id.

EPA explained at length the advantages of using
screening levels and the reasons why such an approach
was consistent with the statute. In particular, explained
EPA, the use of screening levels “will be used to avoid
‘excessive’ treatment.” Jd. at 56a.‘ Indeed, it was im-
portant to use screening levels because “(t]he agency
does not believe that Congress intended that EPA prom-
ulgate standards requiring treatment for treatment’s
sake (i.e, requiring more treatment than necessary to
protect human health and the environment).” Jd. at 56a-
57a (emphasis added). At the same time, the use of
screening levels would enable EPA to identify circum-
stances in which none of the available technologies pro-
vided adequate protection to human health, and would

1EPA explained that excessive treatment would occur if the
agency based its standards solely on BDAT because “available tech-
nologies may be capable of achieving greater reductions in toxicity

. . than are actually necessary to provide protection of human
health and the environment in subsecuent land disposal of hazardous
wastes.” App. 56a.

5

therefore serve to spur the development of “new and more
efficient technologies.” Jd. at 57a. At the end of its
lengthy discussion of the advantages of screening levels,
EPA noted that it would also consider using two alter-
native approaches, each of which would use only BDAT
to set treatment standards.

On November 7, 1986, after receiving numerous com-
ments indicating widespread support for the use of
screening levels, the agency issued its Final Rule. See
App. 45a. The agency completely reversed itself and an-
nounced that it had abandoned its Proposed Rule in favor
of a BDAT-only approach.’ It did not explain the basis
for its about-face, nor did it attempt to explain how tech-
nology-based standards requiring treatment for treat-
ment’s sake would be consistent with the statute. In-
stead, the agency simply stated that “the plain language
of the statute does not preclude a technology-based ap-
proach.” Jd. at 47a. The agency did disclose, however,
that “several commenters, including eleven members of
Congress, argued strongly that this [screening levels]
approach did not fulfill the intent of the Law.” Jd. (em-
phasis added). Although EPA rejected the contention
that the statute required a BDAT-only approach, the
agency concluded that adopting such an approach “best
responds te the above-stated comments.” /d.*

* EPA’s Final Rule does permit parties to petition the agency for
individual exemptions from the BDAT requirement. 51 Fed. Reg.
40,572, 40,578. When it published its Proposed Rule, however, the
agency had emphasized that “the petition process” had the “major
drawback” of restricting land disposal during the petition review
period and burdening the agency with the need to consider each
petition on its individual merits. App. 5la-52a. In its Final Rule,
EPA stated that it “expects .. . relatively few petitions might be
submitted for review... .” 51 Fed. Reg. 40,572, 40,578.

%’ The eleven members of Congress included two who chaired com-
mittees with substantial responsibility for overseeing EPA’s activi-
ties and determining its budget as well as several other influential
members of such committees. See EPA Plan to Carry Out Waste

6

3. EPA’s decision to adopt a BDAT-only approach
prompted numerous legal challenges, of which only two
are relevant here. First, Chemical Manufacturers Asso-
ciation (CMA), a petitioner below, argued that the stat-
ute requires EPA to adopt a risk-based approach in con-
junction with a technology-based approach. CMA pointed
out that, as EPA itself had emphasized in its Proposed
Rule, application of the BDAT-only standard will often
result in “treatment for treatment’s sake,” something
Congress could not have intended.* See App. 57a. Second,
intervenor API (petitioner herein), intervenor Edison
Electric Institute, and CMA argued that EPA had not
provided a permissible explanation for abandoning its
original approach in favor of the BDAT-only standard.

The court of appeals, per curiam, held that EPA had
completely failed to give any meaningful explanation for
its ultimate choice. “In order fully to convey the inade-
quacy of EPA’s explanation,” the majority reproduced it
“at length.” App. 18a. As the majority summarized it,
EPA’s explanation consisted solely of a blind submission
to political pressure:

EPA’s “rationale” ... is that several members of
Congress (among others) urged upon it the claim
that Proposition X (‘Congress mandated BDAT”’)
requires Result A (“EPA adopts BDAT”’), and that
although Proposition X is inaccurate, the best re-
sponse to the commenters is to adopt Result A.

Id. at 21a. The court emphatically rejected EPA’s logic
on the grounds that “members of Congress have no power,
once a statute has been passed, to alter its interpretation
by post-hoc ‘explanations’ of what it means.” Jd. at 20a.

Law’s Land Ban “Fatally Flawed,’ Members of Congress Say,
Daily Rep. for Execs. (BNA) No. 47, at A-8 (March 11, 1986).

4CMA argued, for example, that the application of BDAT would
require in many instances that waste water be treated to a greater
degree of purity for land disposal than EPA standards would re-
quire for drinking water. See App. 15a-16a.

7

Notwithstanding this holding, the majority nevertheless
went on to decide whether the agency’s action satisfied
the two-step analysis set forth in Chevron v. Natural Re-
sources Defense Council, 467 U.S. 837, 842-45 (1984).°
First, under Chevron Step One, the court held that
§ 3004(m) does not preclude a BDAT-only approach.
App. 13a-14a. Next, under Chevron Step Two, the court
argued that the BDAT-only approach was a “reasonable”
interpretation of the statute. Jd. at 14a-17a.

The essence of the majority’s Step Two analysis was
that it was reasonable for EPA to rely exclusively on
BDAT to set treatment standards in light of “the un-
certainties inherent” in relying upon any risk-based ap-
proach. Jd. at 17a. Indeed, the majority developed de-
tailed responses to . ach of the arguments raised concern-
ing the reasonableness of a BDAT-only approach. Jd. at
14a-17a. Nowhere in the Final Rule, however, had EPA
adopted any of these arguments.

Despite the lack of any EPA explanation in the Final
Rule, the majority of the court stated that it was not
precluded from conducting its inquiry, under Chevron
Step Two, into the reasonableness of the BDAT-only ap-
proach. The majority stated that it was sufficient, under
Chevron, that its theory be drawn from statements pub-
lished in the Proposed Rule and from the briefs submitted
by EPA’s counsel. /d. at 17a. The majority expressly
rejected (id.) the suggestion of the concurring judge that
only an agency’s final rule, and “not its prior musings,
nor, ordinarily, its post hoe explanations in court are
proper subjects of judicial review.” Jd. at 38a-39a n.1
(opinion of Silberman, J.) (citations omitted).

Although the majority upheld the Final Rule under
Chevron, it did not immediately affirm. Instead, the ma-
jority concluded that it was necessary tor the agency to
explain adequately why it chose the (now judicially sanc-

5 See page 11, infra (quoting Chevron).

8

tioned) BDAT-only approach over the screening-level ap-
proach that the agency initially proposed. The court of
appeals stayed issuance of the mandate for 90 days, and
remanded to give EPA the opportunity to submit that
explanation to the court or to withdraw the rule.

4. Judge Silberman concurred in part and in the re
sult. Although he agreed with the majority’s formal de-
cision to remand, he sharply criticized the majority’s
“reasonableness” analysis as a radical departure from
Chevron. According to Judge Silberman, it is “inappro-
priate” and “perhaps analytically impossible” for a court
to consider whether an agency’s statutory interpretation
is “reasonable” where—as here—the agency has offered
no legitimate explanation for its conciusion. Jd. at 34a-
35a (opinion of Silberman, J.).

Judge Silberman began by agreeing with the majority
that EPA’s explanation for its Final Rule “is utterly
devoid of any rationale whatsoever.” Jd. at 37a. More-
over, he observed, an explicit agency rationale was espe-
cially necessary here to explain the Final Rule’s remark-
able severity—to explain, for instance, “how (and why)
Congress would have intended EPA to require generators
to treat the wastewaters they intended to pour into the
ground to levels more pure than Congress requires for
drinking water drawn out of the ground.” Id. at 39a
(emphasis in original). “More fundamentally, it is in-
cumbent upon EPA to identify the incremental ‘threats
to human health and the environment’ that it hopes to
address by opting uniformly for more stringent technol-
ogy-based standards in lieu of health-based standards of
whatever origin.” Jd.

Judge Silberman explained that the same “explanation”
that the majority found inadequate to explain the agency’s
preference for the BDAT-only approach is also inadequate
to explain why that approach is itself a “reasonable’’ in-
terpretation of the statutory mandate. Though he agreed
with the majority that the statutory language does not

9

directly speak to the matter, he observed that this am-
biguity suffices only to resolve Step One of the Chevron
inquiry. Jd. at 37a-38a. Step Two asks whether the
agency has reasonably explicated the statute, and, absent
any meaningful explication at all, there is simply no an-
swer to this question. By labelling the agency’s action
“reasonable,” “the majority ends up deferring not to an
agency statutory construction, but rather simply to a re-
sult.” Jd. at 39a. “Assuming this judicial approach ever
were permissible, surely after Chevron it no longer is.”
Id.

To Judge Silberman, the outcome of the remand was
now obvious and entirely predictable. The court had al-
ready assured the agency that its interpretation of the
statute was reasonable and had provided EPA with a
rationale that the court had already determined would
be adequate. Moreover, the panel, by retaining jurisdic-
tion, had effectively assured the agency that it would
summarily affirm the Final Rule if EPA simply parroted
the court’s own logic. The court’s remand was therefore
an affirmance in everything but name—‘“‘an empty ges-
ture, one which conforms to principles of judicial review
of agency policymaking only in form.” Jd. at 41a.

6. On February 12, 1990, EPA filed a “Notice of Com-
pliance” with the court’s order, retaining the BDAT-
only approach and formally adopting the court’s sug-
gested rationale that the BDAT-only approach was appro-
priate because “uncertainties currently remain relating
to assessing wastes’ toxicity.” See App. 74a. The agency
saw no need to propose, or to give interested parties any
formal opportunity to comment on, the “Notice.” Jd. at
76a-77a. On March 14, 1990 without requesting further
briefing, the court, without supplemental opinion, sum-
marily dismissed the petitions for review.

i0
REASONS FOR GRANTING THE PETITION

The procedure and analysis employed by the court of
appeals has expanded greatly and perniciously its au-
thority to substitute its judgment for that of an admin-
istrative agency in any of the numerous instances where
that agency has failed adequately to explain the basis for
its actions. Instead of leaving the matter after remand
to an open-minded, independent inquiry and investigation,
the court has empowered itself to cireumscribe narrowly
the realistic choices an agency has on remand by telling
the agency what it may say and how to say it in order
to obtain judicial approval. As if the unambiguous judi-
cial directive were not enough incentive to adopt a par-
ticular interpretation or rule, in this approach the court
of appeals also retains jurisdiction to affirm the agency’s
action on remand without further notice and comment
procedures and without further briefing. No federal
agency in these circumstances can reasonably be expected
to withstand the temptation simply to conform to the
advice of the court, especially when the court’s rationale
supports an outcome that the agency previously selected,
albeit for wholly impermissible reasons. In sum, the hold-
ing below completely undermines the notion of an inde-
pendent administrative process, which lies at the core of
Chevron.

The majority’s approach flouts Chevron in two prin-
cipal ways. First, it effectively construes Chevron as a
repudiation of the basic principle, established in SEC v.
Chenery Corp., 318 U.S. 80, 87, 92-95 (1943) (Chenery
I) and SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)
(Chenery II), that an agency, and not a reviewing court,
must supply the explanation needed to determine whether
the agency has acted within the scope of its delegated au-
thority. Yet, instead of repudiating Chenery, Chevron
builds upon it and clarifies its application to judicial re
view of an agency’s statutory interpretation. Second, the
majority turns Chevron on its head: it effectively trans-

11

forms a principle requiring judicial deference to agency
interpretation into a vehicle for promoting agency sub-
mission to judicial interpretation.

1. In Chevron v. Natural Resources Defense Council,
467 U.S. 837 (1984), this Court declared:

When a court reviews an agency’s construction: of
the statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is
the end of the matter. ... If, however, the court
determines Congress has not directly addressed the
precise question at issue, the court does not simply
impose its own construction on the statute, as would
be necessary in the absence of an administrative in-
terpretation. Rather, if the statute is silent or am-
biguous with respect to the specific issue, the ques-
tion for the court is whether the agency’s answer
is based on a permissible construction of the statute.

Id. at 842-43 (footnotes omitted). Courts and commen-
tators refer to the preliminary inquiry—‘“whether Con-
gress has directly spoken to the precise question at issue”
—as “Step One” of the Chevron analysis. Accordingly,
“Step Two” enters the picture only where the court de-
termines that Congress did not specifically require a par-
ticular interpretation of the statute. Step Two considers
whether the agency’s interpretation is “reasonable.” Id.
at 844. If it is, then the reviewing court must defer to
it. Id.

Inextricably intertwined with Chevron’s deference re-
quirement is another fundamental principle of adminis-
trative law:

[A] reviewing court, in dealing with a determina-
tion or judgment which an administrative agency
alone is authorized to make, must judge the propriety
of such action solely by the grounds invoked by the
agency. If those grounds are inadequate or im-

- =

12

proper, the court is powerless to affirm the admin-
istrative action by substituting what it considers to
be a more adequate or proper basis.

Chenery II, 332 U.S. at 196; accord Motor Vehicle Mfrs.
Ass’n V. State Farm Mutual Auto. Ins. Co., 463 U.S. 29,
43, 50 (1983); Federal Power Comm’n v. Texaco, 417
U.S. 380, 397 (1974); Burlington Truck Lines v. United
States, 371 U.S. 156, 168-69 (1962). To invent support
for a rule that the agency itself did not justify “would
propel the court into the domain which Congress has set
aside exclusively for the administrative agency.” Chenery
IT, 332 U.S. at 196.

Chevron and Chenery spring from the same source:
the need to ensure that agencies—not courts—administer
statutes in a rational and politically responsible way.
Both Chevron and Chenery forbid courts to corrupt the
administrative process by performing the kinds of inter-
pretive tasks that Congress has delegated to the agencies.

Although Chevron does not refer explicitly to Chenery,
it seems plain that a court must adhere to the Chenery
principle in conducting its inquiry under Step Two of
Chevron. Step Two requires courts to consider whether
an agency’s interpretation is “reasonable.” 467 U.S. at
844. The Chenery principle permits courts to do this
because, in the normal course of events, an agency has
supplied an explanation—more or less persuasive—to
support its interpretation. Under Chenery, such
“grounds invoked by the agency,” 332 U.S. at 196, must
be the sole subject of the court’s reasonableness inquiry.
Yet where, as here, the agency has provided no legiti-
mate explanation on the merits, a court cannot pass on
the “reasonableness” of the interpretation without pro-
pelling itself “into the domain which Congress has set
aside exclusively for the administrative agency.” Jd. In
short, when Congress implicitly delegates to an agency
the authority to construe an open-ended statute, the
agency itself must supply the reasoned basis for a given

13

interpretation. A court may review the agency’s posi-
tion, but it may not approach the task of statutory in-
terpretation de novo.°

In the present case, Congress gave EPA the authority
to implement RCRA and, thereby, to interpret, where
necessary, § 3004(m). Whether EPA’s interpretation is
“reasonable” under Chevron depends upon the agency’s
grounds for adopting it. Yet political pressure was
EPA’s only articulated basis for rejecting its original
rule in favor of the BDAT-only approach. Because EPA
completely ignored the actual merits of that approach,
the court was wrong to judge the “reasonableness” of the
interpretation “by substituting what it considers to be a
more adequate .. . basis.” Chenery II, 332 U.S. at 196.’

The majority below claimed to base its “reasonable-
ness” judgment upon several EPA observations publisned
in the Proposed Rule—which, of course, had rejected the
BDAT-only approach (see p. 4, supra)—and upon state-

® Here, for example, the court of appeals was presented essentially
with two challenges to the Final Rule: CMA’s claim that the statute
required EPA to use a risk-based approach; and API’s argument
that EPA’s rationale for choosing a technology-only approach was
inadequate. The court rejected CMA’s argument and held that a
risk-based approach was not required, but agreed with API that
the explanation for the technology-only approach was entirely in-
adequate. At that point, the logical, traditional result should have
been for the court to remand to EPA to consider anew its approach
in a new proceeding and, if EPA chose to retain technology-only,
to develop an adequate rationale of its own. There was no need,
and indeed it was highly unorthodox, for the court to go on, as it
did, to hold that the technology-only approach was reasonable and
to provide a judicial rationale for that approach.

™To be sure, the court of appeals did not literally affirm EPA’s
rule but, rather, “remanded” the case to the agency for a decision
to withdraw the rule or to retain it and provide a formal justifica-
tion. Yet the result of this remand was obvious and entirely pre-
dictable. See page 9, swpra. In effect, the court’s remand was an
affirmance in everything but name or, to repeat Judge Silberman’s
apt characterization, “an empty gesture.” App. 41a.

14

ments in the briefs submitted by EPA’s counsel. See
App. 17a. As Judge Silberman pointed out, however,
“only the agency’s explanation ef its ultimate choice, not
its prior musings nor, ordinarily, its post hoe explana-
tions in court are proper subjects of judicial review.”
App. 38a-39a n.1 (citations omitted); accord American
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 539 & n.73
(1981) ; Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402, 419 (1971). The decision of the Court of
Appeals to make these the subjects of its review implies
that the court may apply the Chevron Step-Two analysis
to an unjustified agency rule whenever the court can
extract some support for the rule from somewhere in the
record or from the agency’s brief. Because a court can
almost always find support for an interpretation in one
or both of these sources, the practical result of this ap-
proach is, again, to “propel the court into the domain
which Congress has set aside exclusively for the admin-
istrative agency.” Chenery II, 332 U.S. at 196.

2. Chevron reaffirmed that the primary authority to
interpret congressional policies should lie with the admin-
istrative agencies that implement them, not with courts.
Chevron, 467 U.S. at 843-45. That courts should gen-
erally defer to an agency’s statutory interpretation is
the central principle of Chevren. The opinion below
stands that principle on its head. Instead of deferring
to the agency’s articulation of reasons for the Final Rule,
the court supplied its own—and remanded to the agency
for what predictably turned out to be essentially a reiter-
ation of the court’s logic. In practical effect, this ap-
proach produces agency deference to—and reliance upon
—judicial interpretation of statutes.

This anti-Chevron dynamic may work serious mischief
on two levels. First, in the short run, as in cases like
this, the court’s provision of a post-hoc rationale gives
the agency an incentive to embrace the procedurally de-
fective status quo. On remand, the agency can be cer-
tain of one thing: if it parrots the court’s logic, it can

15

guarantee subsequent judicial validation of its interpre-
tation. The court lobs the logic down, the agency bats the
logic back and perfunctorily rounds the bases while the
court looks on with approval. Nowhere in this process
does the agency have any incentive seriously to reevalu-
ate its decision. Instead, the agency has a compelling
incentive to adopt the court’s post-hoc rationale for the
status quo, which effectively has been pre-approved, and
which is obviously the path of least resistance.*

In the present case, for instance, EPA had no incentive
to correct the procedural defect that underlies this law-
suit, t.e., its abdication of reason in the face of politicai
pressure. Thus, it is still uncertain what decision the
agency would have rendered if it had been required to
explain its choice de novo—that is, if the court had sim-
ply remanded the inadequate Finel Rule for further rule-
making proceedings without supplying the agency with
an approved explanation.

It is quite possible, for instance, that the agency would
have returned to the choice it originally made before it
faced political pressure. If ever there were a case where
a court should have forced an agency to produce its own
explanation for its actions, it is a case where, as here,
the agency explicitly acknowledged that it had succumbed
to political pressure. Yet here, the court simply com-
pounded the agency’s error by providing strong judicial
incentive to preserve the tainted result. This process is

8 The D.C. Circuit has strayed far from its position in 1978, when
it declared:

[W]e must recognize the danger that an agency, having reached
a particular result, may become so committed to that result as
to resist engaying in any genuine reconsideration of the issues.
The agency’s action on remand must be more than a barren
exercise of supplying reasons to support a pre-ordained result.
Post-hoc rationalizations by the agency on remand are no more
permissible than are such arguments when raised bv appellate
counsel during judicial review.
Food Marketing Inst. v. ICC, 587 F.2d 1285, 1290 (1978).

16

particularly prejudicial to the rights and interests of
affected parties because it allows the agency to submit
its pre-approved rationale directly to the court for a
“rubberstamp” affirmance without supplemental briefing
or even a supplemental opinion.

The opinion below is pernicious on a second level as
well. It raises the specter that, over time, courts may
well continue to misconstrue Chevron and to offer their
own theories for the reasonableness of agency interpre-
tation. If this happens, agencies may start relying on
courts to “rescue” them from the “predicament” of ar-
ticulating justifications for difficult policy choices. See
App. 4la (Silberman, J., concurring). Such reliance
would be especially likely where, as here, the agency has
a political incentive to arrive at one particular outcome
to the exclusion of various alternatives that a reasoned
inquiry might support. Agencies would be prempted in-
creasingly to rely upon the post-hoc rationalizations of
their lawyers, see, e.g., Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 419 (1971), because they
could count on reviewing courts to rely upon those ra-
tionalizations as well.

3. This Court should grant certiorari to clarify the
essential role that the Chenery principle plays in a proper
Chevron analysis, and to prevent future distortions of
the administrative process. The court should then re-
mand the case for additional proceedings.

Only additional proceedings untainted by efforts of
other branches of government to interfere with the exec-
utive’s function will enable us to know whether EPA
rejected its original approach in favor of the BDAT-
only standard because, in its expert judgment, the latter
approach best promotes the statutory policies, or because,
in a continuing spirit of submission, the agency simply
parroted the court of appeals’ reasoning.’ As matters

® It bears mention that almost four years have elapsed since EPA
promulgated its Final Rule. In that time a new administrator has

17

stand now, petitioners have not had a full or fair oppor-
tunity to challenge the ‘‘agency’s” revised explanation for
its Final Rule.’® That revised explanation appeared only
in the agency’s “Notice of Compliance,” without the bene-
fit of prior notice and comment rulemaking procedures
(see App. 76a-77a) and the court that effectively wrote
the draft for the Notice of Compliance summarily af-

firmed it without further briefing.

The court of appeals’ distortion of Chevron will be in-
fluential because it provides the court with discretionary
authority to influence, if not control, the substantive de-
cisions of federal regulatory agencies. If a majority of a
reviewing court agrees with the decision of the agency
but finds its explanation inadequate, then the majority
can employ this new procedure to ensure that on remand
the agency reaffirms its prior position. On the other
hand, if the majority not only finds the agency’s explana-
tion wanting but also disagrees with the agency’s solu-
tion, then it simply remands to the agency in the expec-
tation that the matter will be fully reconsidered. In ef-
fect, the majority could dictate the regulatory outcome
strictly by the appellate process it follows. Such a dan-
gerous practice would be all the worse because it arises
in the D.C. Circuit which reviews the lion’s share of

assumed the leadership of EPA. Moreover, there may have been
technological or methodological advances in the interim that are
relevant to the process of setting screening levels and that deserve
fresh attention.

10 Because the D.C. Circuit’s handling of EPA’s Final Rule was
so unusual and confusing, API also has challenged EPA’s final
action as reflected in the so-called ‘“‘Notice of Compliance’”’ itseif.
The petition for review of that action is now pending in the D.C.
Circuit (American Petroleum Institute v. EPA, No. 90-1268). In
that action, however, the government has taken the position that
the issues on which API seeks review have been “finally adjudi-
cated,” and that there is no basis for further review in the D.C.
Circuit. See EPA’s Nonopposition To Petitioner’s Motion To Defer
Further Proceedings, No. 90-1268 (dated July 5, 1990).

18

federal agency rulemaking decisions. It is therefore vital
that the Court grant the petition in this case to determine
whether the court of appeals’ assault on Chevren will be
tolerated.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

G. WILLIAM FRICK CARTER G. PHILLIPS *
RALPH J. COLLELI SAMUEL I. GUTTER
AMERICAN PETROLEUM MARK E. HADDAD
INSTITUTE SIDLEY & AUSTIN
1220 L Street, N.W. 1722 Eye Street, N.W.
Washington, D.C. 20005 Washington, D.C. 20006
(202) 682-8252 (202) 429-4000

July 12, 1990 ser * Counsel of Record

APPENDICES

la
APPENDIX A

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

Nos. 86-1657, 86-1677, 87-1016
and 87-1057

HAZARDOUS WASTE TREATMENT COUNCIL,
Petitioner,
¥.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent,

EDISON ELECTRIC INSTITUTE, et al.,
CHEMICAL MANUFACTURERS ASSOCIATION,
Intervenors.

Argued March 22, 1989
Decided Sept. 15, 1989

Before WALD, Chief Judge, SILBERMAN and D.H.
GINSBURG, Circuit Judges.

Opinion PER CURIAM.

Opinion concurring in part and concurring in the re-
sult filed by Circuit Judge SILBERMAN.

PER CURIAM:

In 1984, Congress amended the Resource Conservation
and Recovery Act (“RCRA”), 42 U.S.C. § 6921-6991

2a

(1982 & Supp. IV 1986), to prohibit land disposal of
certain hazardous solvents and wastes containing dioxins
except in narrow circumstances to be defined by Envir-
onmental Protection Agency (“EPA”) regulations. See
Hazardous and Solid Waste Amendments, § 201(a), 42
U.S.C. § 6924(e) (Supp. IV 1986). In these consolidated
cases, petitioners seek review of EPA’s final “solvents
and dioxins” rule published pursuant to Congress’ 1984
mandate. We conclude that the rule under review is con-
sistent with RCRA, but remand one aspect of the rule-
making to the agency for further explanation.

i
A. Statutory Scheme.

The Hazardous and Solid Waste Amendments of 1984
(“HSWA”), Pub.L. No. 98-616, 98 Stat. 3221 (1984),
inter alia, substantially strengthened EPA’s control] over
the land disposal of hazardous wastes regulated under
RCRA’s “credle to grave” statutory scheme. In pream-
bular language to the HSWA, Congress, believing that
“land disposal facilities were not capable of assuring
long-term containment of certain hazardous wastes,” ex-
pressed the policy that “reliance on land disposal should
be minimized or eliminated.” 42 U.S.C. § 6901 (b) (7).
In order to effectuate this policy, HSWA amended sec-
tion 3004 of RCRA to prohibit land disposal of hazard-
ous-waste unless the waste is “pretreated” in a manner
that minimizes “short-term and long-term threats to
human health and the environment,” id. § 6924(m), or
unless EPA can determine that the waste is to be dis-
posed of in such a fashion as to ensure that “there will
be no migration of hazardous constituents from the dis-
posal [facility]... .” Id. § 6924(d) (1), (e) (1), & (g)
(5).

As amended, RCRA requires EPA to implement the
land disposal prohibition in three phases, addressing the

8a

most hazardous “listed” wastes first. See id. § 6924(g).
In accordance with strict statutory deadlines, the Admin-
istrator is obligated to specify those methods of land dis-
posal of each listed hazardous waste which “will be pro-
tective of human health and the environment.” Jd. In
addition, “[s]imultaneously with the promulgation of
regulations . . . prohibiting . . . land disposal of a par-
ticular hazardous waste, the Administrator” is required
to

promulgate regulations specifying those levels or
methods of treatment, if any, which substantially
diminish the toxicity of the waste or substantially
reduce the likelihood of migration of hazardous con-
stituents from the waste so that short-term and
long-term threats to human health and the environ-
ment are minimized.

Id. § 6924(m).

Respecting two categories of hazardous wastes, includ-
ing the solvents and dioxins at issue here*® Congress,
however, declined to wait for phased EPA implementa-
tion of the land disposal prohibition. For these wastes,
Congress imposed earlier restrictions, prohibiting land
disposal after dates specified in the HSWA except in ac-
cordance with pretreatment standards or pursuant to

1 EPA was given the task of dividing the wastes presently “listed”
as hazardous under RCRA into thirds according to their “intrinsic
hazard,” 42 U.S.C. § 6924(g)(2) (Supp. IV 1986). In keeping with
RCRA’s deadline, the resulting schedule, promulgated in 1986, see
51 Fed.Reg. 19,300 (1986), required EPA to implement the land
disposal prohibition and promulgate treatment standards for each
third by dates no later than 45, 55, and 66 months after enactment
of the HSWA, respectively. See 42 U.S.C. § 6924(g)(4). One aspect
of EPA’s regulations governing the “first third” of these wastes was
recently upheld on review in Chemical-Waste Management, Inc. v.
EPA, 869 F.2d 1526 (D.C.Cir.1989).

2 The other category is the so-called “California List” wastes, the
rule for which is the subject of Hazardous Waste Treatment Coun-
cu v. Thomas, 885 F.2d 918 (D.C.Cir.1989).

4a

regulations specifying “protective” methods of disposal.
Id. § 6924(e) (1). These prohibitions, as applied to the
solvents and dioxins listed in the HSWA, were to take
effect November 8, 1986. Jd.

In order to further RCRA’s basic purpose of mandat-
ing treatment of hazardous wastes in lieu of land dis-
posal, Congress further provided that storage of wastes
falling within the land disposal prohibition would be
“prohibited unless such storage is solely for the purpose
of the accumulation of such quantities of hazardous
waste as are necessary to facilitate proper recovery,
treatment or disposal.” Jd. § 6924(j). Congress believed
that permitting storage of large quantities of waste as a
means of forestalling required treatment would involve
health threats equally serious to those posed by land dis-
posal, and therefore opted in large part for a “treat as
you go” regulatory regime.

B. The Rulemaking Under Review.

In January 1986, EPA issued a notice of proposed
rule-making announcing its draft implementation of the
land disposal prohibition for solvents and dioxins. See
51 Fed. Reg. 1602 (1986) (hereinafter ‘Proposed
Rule’). Approximately ten months later, after receiving
extensive public commentary on the draft blueprint, EPA
published a final solvents and dioxins rule differing in
some respects from its draft approach. See 51 Fed. Reg.
40,572 (1986) (hereinafter “Final Rule’). These differ-
ences were especially striking in EPA’s implementation
of section 3004(j) and section 3004(m) of RCRA, gov-
erning the storage prohibition and treatment standards,
respectively, for solvents and dioxins. These portions of
the rule, together with other discrete portions of the rule-
making faulted by petitioners, are summarized below.

1. Section 3004(m) Treatment Standards.

In the Proposed Rule, EPA announced its tentative
support for a treatment regime embodying both risk-

5a

based and technology-based standards. The technology-
based standards would be founded upon what EPA deter-
mined to be the Best Demonstrated Available Technology
(“BDAT”); parallel risk-based or “screening” levels
were to reflect “the maximum concentration [of a haz-
ardous constituent] below which the Agency believes
there is no regulatory concern for the land disposal pro-
gram and which is protective of human health and the
environment.” Proposed Rule at 1611. The Proposed
Rule provided that these two sets of standards would be
melded in the following manner:

First, if BDAT standards were more rigorous than
the relevant health-screening levels, the latter would be
used to “cap the reductions in toxicity and/or mobility
that otherwise would result from the application of
BDAT treatment[.]” Jd. Thus, “treatment for treat-
ment sake” would be avoided. Second, if BDAT stand-
ards were less rigorous than health-screening levels,
BDAT standards would govern and the screening level
would be used as “a goal for future changes to the treat-
ment standards as new and more efficient treatment tech-
nologies become available.” Jd. at 1612. Finally, when
EPA determined that the use of BDAT would pose a
greater risk to human health and the environment than
land disposal, or would provide insufficient safeguards
against the threats produced by land disposal, the screen-
ing level would actually become the 3004(m) treatment
standard. Id.

EPA invited public comment on alternative approaches
as well. The first alternative identified in the Proposed
Rule (and the one ultimately selected by EPA) was
based purely on the capabilities of the “best demon-
strated available technology.” Jd. at 1613. Capping
treatment levels to avoid treatment for treatment’s sake,
according to EPA, could be accomplished under this tech-
nology-based scheme by “the petition process”’:

Under this approach, if a prescribed level or method
of treatment under section 3004(m) resulted in ecn-

6a

centration levels that an owner/operator believed to
be overly protective, the owner/operator could peti-
tion the Agency to allow the use of an alternative
treatment level or method or no treatment at all by
demonstrating that less treatment would still meet
the petition standard of protecting human health and
environment.

Id. at 1613. And the function served by health-screening
levels of providing a default standard when the applica-
tion of BDAT technology would itself pose a threat to
human health and the environment could likewise be ful-
filled by the petition process: “an owner operator could| |
petition the Agency .. . to allow continued land disposal
of the waste upon a demonstration that land disposal of
the waste -would not result in harm to human health and
the environment.” Jd.

The Agency received comments supporting both ap-
proaches, but ultimately settled on the pure-technology
alternative. Of particular importance to EPA’s decision
were the comments filed by eleven members of Congress,
all of whom served as conferees on the 1984 RCRA
amendments. As EPA recorded in the preamble to the
Final Rule:

[these] members of Congress argued strongly that
{the health screening] approach did not fulfill the
intent of the law. They asserted that because of the
scientific uncertainty inherent in risk-based deci-
sions, Congress expressly directed the Agency to set
treatment standards based on the capabilities of
existing technology.

The Agency believes that the technology-based ap-
proach adopted in [the] final rule, although not the
only approach allowable under the law, best responds
to the above stated comments.

Final Rule at 40,578.

EPA alse relied on passages in the legislative history
supporting an approach under which owners and opera-

| ;

7a

tor of hazardous waste facilities would be required to
use “‘‘the best [technology] that has been demonstrated
to be achievable.’” Jd. (quoting 103 CONG.REC. 89178
(daily ed. July 25, 1984) (statement of Senator Chaffee).
And the agency reiterated that the chief advantage of-
fered by the health-screening approach—avoiding “‘treat-
ment for treatment’s sake”—could “be better addressed
through changes in other aspects of its regulatory pro-
gram.” Id. As an example of what parts of the program
might be altered, EPA announced that it was “consider-
ing the use of its risk-based methodologies to characterize
wastes as hazardous pursuant to section 3001 [of
RCRA.” Id.; see 42 U.S.C. § 6921 (1982 & Supp. IV
1986) .*

Petitioner CMA challenges this aspect of the rule as
an unreasonable construction of section 3004(m)’s man-
date to ensure that “short-term and long-term threats
to human health and the environment are minimized.”
42 U.S.C. § 6924(m) (1982 & Supp. IV 1986). In the
alternative, CMA argues that EPA has failed to explain
the basis—in terms of relevant human health and envir-
onmental considerations—for its BDAT regime, which
allegedly requires treatment in some circumstances to
levels far below the standards for human exposure under
other statutes administered by EPA. Thus, CMA claims
that EPA’s action in promulgating a technology-based
rule is arbitrary and capricious.

3 Under secton 3001, the Administrator is empowered to list par-
ticular wastes as hazardous, and thus within RCRA’s ambit, “taking
into account toxicity, persistence, [] degradability in nature, poten-
tial for accumulation in tissue, and other related factors such as
flammabilty, corrosiveness, and other hazardous characteristics.” 42
U.S.C. § 6921(a) (1982). The statute provides that the Administra-
tor “shall [] revise[] [these lists] from time to time as may be
appropriate.” Jd. EPA’s current list is set forth at 40 C.F.R. Part
261, Subparts C and D.

8a

2. Section 3004(7) Storage Prohibition.

Section 3004(j) of RCRA, as noted above, prohibits
the storage of wastes falling within a land prohibition
“unless such storage is solely for the purpose of the ac-
cumulation of such quantities of hazardous waste as are
necessary to facilitate proper recovery, treatment, or dis-
posal,” 42 U.S.C. § 6924(j) (1982 & Supp. IV 1986). In
the Proposed Rule, EPA tentatively implemented this
provision to allow generators to accumulate hazardous
wastes on-site for up to 90 days, no questions asked. EPA
selected this period in the belief “that it would allow a
reasonable period for accumulation prior to further man-
agement without interfering with a generator’s produc-
tion process[.]” Proposed Rule at 1709. It observed that
as a matter of prevailing industrial practice “most wastes
were removed from the site of generation within 90 days.”
Id. Nevertheless, out of concern that “a longer time may,
in some cases, be necessary to accumulate sufficient quan-
tities to facilitate proper recovery, treatment, or dis-
posal,” id., the agency solicited comments on alternative
storage periods that might be appropriate.

The comments received by the Agency ranged far and
wide, but all found the 90-day period inadequate. A ma-
jority of the commentors favored a one-year storage pe-
riod in order to accommodate small-quantity generators
and others whose waste streams “accumulate[] more
slowly than others.” Final Rule at 40,582. On the basis
of these remarks, EPA agreed that 90 days was an in-
sufficient period for the adequate accumulation of wastes
to facilitate recovery, treatment or disposal.

EPA ultimately settled on a one-year storage period,
but the implementing regulation differed significantly in
character from the 90-day proposal. The Final Rule
provides:

An owner/operator of a treat™ent facility may store
[] wastes for up to one year unless the Agency can

9a

demonstrate that such storage was not solely for ‘he
purpose of accumulation of such quantities of haz-
ardous waste as are necessary to facilitate proper
recovery, treatment, or disposal.

Id. at 40,643 (emphasis added) (codified at 40 C.F.R.
$ 268.50(b) (1988)). A companion provision requires
owners and operators to bear the burden of proving that
storage for over a one-year period was for proper pur-
poses under RCRA. See id. (codified at 40 C.F.R.
§ 268.50(¢c) (1988) ).

Characterizing the final storage rule, in effect, as a
“shifting of the statutory burden of proof” which “ef-
fectively allows a one year override of the statutory pro-
hibition” against storage, petitioners Hazardous Waste
Treatment Council (“HWTC”) and the Natural Re-
sources Defense Council (““NRDC”) challenge the rule
as inconsistent with section 3004(j) of RCRA.

3. Responsibility for Tes'ing Wastes
Prior to Disposal.

A determination as to whether and ‘o what degree
treatment of a waste is required prior to land disposal
depends upon the concentration of hazardous constitu-
ents in the waste. To facilitate these determinations
and to ensure compliance with the land disposal prohibi-
tions and applicable treatment standards, EPA proposed
to implement requirements for mandatory testing in
some circums‘ances. Proposed Rule at 1691.

The Agency was immediately confronted with the ques-
tion of who, among generators, treatment facilities and
land disposal facilities, should shoulder the responsibility
of testing the waste prior to disposal. While several al-
ternatives were available, EPA initially proposed that
the land disposal facility alone be responsible for such
testing. Proposed Rule at 1692.

10a

Under this approach, the disposal facility must either
conduct an analysis of the waste or obtain an analy-
sis of the waste from the generator or treater. Sim-
ilarly, the owner or operator of a land disposal fa-
cility could arrange for the generator or treatment
facility to supply all or part of the required testing
data. However, if the generator or treater did not
supply the testing data and the land disposal facil-
ity owner or operator chose to accept the waste, the
owner or operator would be responsible for conduct-
ing the required testing.

Id. at 1691. The agency cautioned that this approach
did not leave the generator without responsibility alto-
gether. The generator was still obliged to determine
“whether he must treat his waste prior to disposal.” /d.
“{Rjather than specifically requiring the generator to
conduct testing, [however], the Agency [proposed to]
allow determination of whether wastes meet the regula-
tory thresholds to be based on either testing or knowl-
edge of the characteristics of the waste.” Jd. The Agency
found this proposal desirable because “[i]t is flexible,
does not require redundant testing, fits into the current
regulatory scheme for the waste analysis plan and re-
quires the testing to take place where the liability for
disposal exists—at the land disposal facility.” Jd. at
1691.

The Final Rule bears substantial resemblance to that
initially proposed by EPA, with one principal exception.
As the agency explained, “[b]ecause the [treatment]
approach promulgated [in the Final Rule] does not cap
BDAT with screening levels, more wastes will require
treatment to meet the specified treatment standards.”
Final Rule at 40,597. Given this expanded role for the
treatment industry, EPA decided in the Final Rule to
impose testing requirements on both treatment facilities
and land disposal facilities. But, the agency followed the
proposed rule insofar as it did not require testing by

a

lla

generators. See id. Thus, when sending waste to either
a treatment facility for pretreatment or directly to a
land disposal facility, the Final Rule permits generators
to base their determinations as to the concentration of
hazardous constituents in the waste on “waste analysis
data, knowledge of the waste, or both.” Jd. No matter
what the basis for their determinations, generators for-
warding wastes directly to land disposal facilities must
certify their conclusions to the facilities’ operators. False
certifications, under the Final Rule, may result in crim-
inal penalties. See 40 C.F.R. § 268.7 (1988); see also
42 U.S.C. § 6928(d) (3) (Supp. IV 1986).

Petitioners HWTC and NRDC contend that it is ar-
bitrary and capricious for EPA to require operators of
treatment and land disposal facilities, but not generators,
to test wastes within the land disposal prohibition.

II. SECTION 3004(M) TREATMENT STANDARDS

CMA challenges EPA’s adoption of BDAT treatment
standards in preference to the approach it proposed initi-
ally primarily on the ground that the regulation is not a
reasonable interpretation of the statute. CMA obliquely,
and Intervenors Edison Electric and the American Petro-
leum Institute explicitly, argues in the alternative that
the agency did not adequately explain its decision to take
the course that it did. We conclude, as to CMA’s primary
challenge, that EPA’s decision to reject the use of screen-
ing levels is a reasonable interpretation of the statute.
We also find, however, that EPA’s justification of its
choice is so fatally flawed that we cannot, in conscience,
affirm it. We therefore grant the petitions for review to
the extent of remanding this issue to the agency for a
fuller explanation.

A. The Consistency of EPA’s Interpretation with RCRA.

Our role in evaluating an agency’s interpretation of
its enabling statute is as strictly circumscribed as it is

12a

simply stated: We first examine the statute to ascertain
whether its clearly forecloses the course that the agency
has taken; if it is ambiguous with respect to that ques-
tion, we go on to determine whether the agency’s inter-
pretation is a reasonable resolution of the ambiguity.
Chevron v. Natural Resources Defense Council, 467 U.S.
837, 842-45, 104 S.Ct. 2778, 2781-838, 81 L.Ed.2d 694
(1984).

1. Chevron Step]: Is the Statute Clear?

We repeat the mandate of § 3004(m) (1): the Admin-

. istrator is required to promulgate “regulations specify-

ing those levels or methods of treatment, if any, which

substantially diminish the toxicity of the waste or sub-

stantially reduce the likelihood of migration of hazardous

constituents from the waste so that short-term and long-

term threats to human health and the environment are
minimized.” 42 U.S.C. § 6924(m) (1).

CMA reads the statute as requiring EPA to determine
the levels of concentration in waste at which the various
solvents here at issue are “safe” and to use those “screen-
ing levels” as floors below which treatment would not be
required. CMA supports its interpretation with the ob-
servation that the statute directs EPA to set standards
only to the extent that “threats to human health and the
environment are minimized.”” We are unpersuaded, how-
ever, that Congress intended to compel EPA to rely upon
screening levels in preference to the levels achievable by
BDAT.

The statute directs EPA to set treatment standards
based upon either “levels or methods” of treatment. Such
a mandate makes clear that the choice whether to use
“levels” (sereening levels) or “methods” (BDAT) lies
within the informed discretion of the agency, as long as
the result is “that short-term and long-term threats to
human health and the environment are minimized.” To
“minimize” something is, to quote the Oxford English

0 a

13a

Dictionary, to “reduce [it] to the smallest possible
amount, extent, or degree.”” But Congress recognized, in
the very amendments here at issue, that there are “long-
term uncertainties associated with land disposal,” 42
U.S.C. § 6924(d)(1)(A). In the face of such uncer-
tainties, it cannot be said that a statute that requires
that threats be minimized unambigously requires EPA
to set levels at which it is conclusively presumed that no
threat to health or the environment exists.

Nor are we at all persuaded by CMA’s interpretation
of NRDC v. EPA, 824 F.2d i146, 1163 (D.C.Cir.1987)
(en banc), in which we held that EPA was not permitted
to “substitute[] technological feasibility for health as the
primary consideration under Section 112 [of the Clean
Air Act].” That provision requires the Administrator
to set air pollution standards “at the level which in his
judgment provides an ample margin of safety to protect
the public health.” 42 U.S.C. § 7412(b)(1)(B). EPA
had set emission standards for vinyl chloride, however,
“based solely on the level attainable by the best available
control technology,” 824 F.2d at 1149, despite its finding
that such levels would create health risks. It had neither
stated that the risks it found were insignificant, nor ex-
plained how the risks it accepted were consistent with
its statutory duty to provide “an ample margin of
safety.” Jd. This court held that EPA had erred in fail-
ing to consider whether the best available technology was
sufficient to provide the statutorily mandated margin of
safety. 7d. at 1164-66.

Contrary to CMA’s implication, however, the court did
not hold, or even imply, the converse—that EPA could
not require generators to use technologies that would
reduce emissions to a point below that which would pro-
vide an ‘ample margin of safety.” Indeed, the court noted
that “Congress . . . recognized in section 112 that the
determination of what is ‘safe’ will always be marked by
scientific uncertainty and thus exhorted the Administra-

l4a

tion to set . . . standards that will provide an ‘ample
margin’ of safety,” id. at 1165; we then concluded that
“lo|nee ‘safety’ is assured, the Administrator should be
free to diminish as much of the statistically determined
risk as possible by setting the standard at the lowest
feasible level.” Id.

This is not to say that EPA is free, under § 3004(m),
to require generators to treat their waste beyond the
point at which there is no “threat” to human health or
to the environment. That Congress’s concern in adopting
§ 3004(m) was with health and the environment would
necessarily make it unreasonable for EPA to promulgate
treatment standards wholly without regard to whether
there might be a threat to man or nature. That concern
is better dealt with, however, at Chevron’s second step;
for, having concluded that the statute does not unambig-
uously and in all circumstances foreclose EPA from
adopting treatment levels based upon the levels achiev-
able by BDAT, we must now explore whether the par-
ticular levels established by the regulations supply a rea-
sonable resolution of the statutory ambiguity. :
2. Chevron Step IJ: Is EPA’s Interpretation

Reasonable?

The screening levels that EPA initially proposed were
not those at which the wastes were thought to be en-
tirely safe. Rather, EPA set the levels to reduce risks
from the solvents to an “acceptable” level, and it ex-
plored, at great length, the manifest (and manifold) un-
certainties inherent in any attempt to specify “safe” con-
centration levels. The agency discussed, for example, the
lack of any safe level of exposure to carcinogenic sol-
vents, 51 Fed.Reg. at 1,628; the extent to which refer-
ence dose levels (from which it derived its screening
levels) understate the dangers that hazardous solvents
pose to particularly sensitive members of the population,
id. at 1,627; the necessarily artificial assumptions that

Mei

15a

accompany any attempt to model the migration of haz-
ardous wastes from a disposal site, id. at 1,642-53; and
the lack of dependable data on the effects that solvents
have on the liners that bound disposal facilities for the
purpose of ensuring that the wastes disposed in a facility
stay there, id. at 1,714-15. Indeed, several parties made
voluminous comments on the Proposed Rule to the effect
that EPA’s estimates of the various probabilities were
far more problematic than even EPA recognized. See,
e.g., Comments of Natural Resources Defense Council,
Record at 29,000-62.

CMA suggests, despite these uncertainties, that the
adoption of a BDAT treatment regime would result in
treatment to “below established levels of hazard.” It re-
lies for this proposition almost entirely upon a chart in
which it contrasts the BDAT levels with (1) levels EPA
has defined as “Maximum Contaminant Levels” (MCLs)
under the Safe Drinking Water Act; (2) EPA’s pro-
posed “Organic Toxicity Characteristics,” threshold levels
below which EPA will not list a waste as hazardous by
reason of its having in it a particular toxin; and (3) lev-
els at which EPA has recently granted petitions by
waste generators to “delist” a particular waste, that is,
to remove it from the list of wastes that are deemed haz-
ardous. CMA points out that the BDAT standards would
require treatment to levels that are, in many cases, sig-
nificantly below these “established levels of hazard.”

If indeed EPA had determined that wastes at any of
the three levels pointed to by CMA posed no threat to
human health or the environment, we would have little
hesitation in concluding that it was unreasonable for
EPA to mandate treatment to substantially lower levels.
In fact, however, none of the levels to which CMA com-
pares the BDAT standards purports to establish a level
at which safety is assured or “threats to human health
and the environment are minimized.” Each is a level es-
tablished for a different purpose and under a different

l6a

set of statutory criteria than concern us here; each is
therefore irrelevant to the inquiry we undertake today.

The drinking water levels, for example, are established
under a scheme requiring EPA to set “goals” at a level
at which “no known or anticipated adverse effects on the
health of persons occur.” 42 U.S.C. § 300g-1(b) (4).
EPA is then to set MCLs as close to its goals as “feas-
ible,” taking into account, among other things, treatment
costs. 42 U.S.C. §§ 300g-1(b) (4), (5). Since SDWA
goals are set only to deal with “known or anticipated”
adverse health effects, a mere “threat” to human health
is not enough in that context. Moreover, SDWA levels
are set without reference to threats to the environment.
Finally, EPA must consider costs in setting its MCLs;
there is no similar limitation in § 3004 of RCRA.

Similarly, in promulgating the OTC levels, EPA made
clear that, “[i]n establishing a scientifically justifiable
approach for arriving at [OTC levels], EPA wanted to
assure a high degree of confidence that a waste which re-
leases toxicants at concentrations above the [OTC level]
would pose a hazard to human health.” EPA Hazardous
Waste Management System; Identification and Listing of
Hazardous Waste ... , Proposed Rule, 51 Fed.Reg.
21,648, 21,649 (1986) (emphases added). Thus it is
clear that wastes with toxicant levels below the OTC
thresholds may still pose “threats to human health [or]
the environment.” Id. at 21,648 (emphases added).

Finally, CMA points to the “delisting levels” as ap-
propriate points of comparison. The term is a bit mis-
leading, however. EPA delists particular wastes in re-
sponse to individual petitions, see, e.g., 42 U.S.C. § 6921
(f) (1), and it has not adopted formal, or even de facto,
levels below which any waste will be delisted. That EPA
has delisted, in particular circumstances, wastes contain-
ing concentrations of solvents higher than those called
for by the BDAT standards adds nothing to CMA’s argu-
ment. The treatment standards establish a generic ap-

i lel el al

TRCN cla A vt

17a

proach, requiring that all wastes deemed to be hazardous
be treated to a set level in order to minimize threats to
health and to the environment. If a waste is listed as
hazardous, and an individual generator wants to dispose
of it without meeting the BDAT standards, it may peti-
tion to have its particular waste delisted. If the agency
grants the delisting petition, only the petitioner is af-
fected; the generally required level of treatment remains
the same. Hence, there is no inconsistency between a
“delisting level,” accepted in particular circumstances,
that permits a higher level of a particular contaminant
then the BDAT level otherwise generally applicable.

In sum, EPA’s catalog of the uncertainties inherent in
the alternative approach using screening levels supports
the reasonableness of its reliance upon BDAT instead.
Accordingly, finding no merit in CMA’s contention that
EPA has required treatment to “below established
levels of hazard,” we find that EPA’s interpretation of
$ 3004(m) is reasonable.

Our concurring colleague suggests that our discussion
of the reasonableness of the BDAT standard is unneces-
sary, if not “perhaphs analytically impossible.’”’ Con.Op.
at 371. Contrary to the impression given in his separate
opinion, however, the basis upon which we find EPA’s
interpretation reasonable here is not one that we have
supplied, but the one EPA itself put forth. In its Initial
Rule document discussing BDAT as well as screening
levels, and in its brief to this court, EPA has presented
precisely the arguments we find persuasive here. While,
as we shall see, those arguments are inadequate to justify
the choice made, in the Final Rule, in favor of BDAT
as against screening levels—which also seem to present a
reasonable approach—they do demonstrate that the BDAT
approach is reasonable.

B. Was EPA’s Explanation Adequate?

The Supreme Court has made it abundantly clear that
a reviewing court is not to supplement an agency’s rea-

18a

sons for proceeding as it did, nor to paper over its plainly
defective rationale: “The reviewing court should not at-
tempt itself to make up for such deficiencies [in the
agency’s explanation]; we may not supply a reasoned
basis for the agency’s action that the agency itself has
not given.” Motor Vehicles Manufacturers Ass’n v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 48, 103 S.Ct.
2856, 2866-67, 77 L.Ed.2d 448 (1983) (citing SEC v.
Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577,
91 L.Ed. 1995 (1947)). “We will, however, ‘uphold a
decision of less than ideal clarity if the agency’s path may
reasonably be discerned.’” Jd. (quoting Bowman Trans-
portation, Inc. v. Arkansas-Best Freight System, Inc.,
419 U.S. 281, 286, 95 S.Ct. 488, 442, 42 L.Ed.2d 447
(1974) ). Accordingly, in order to determine whether we
can affirm EPA’s action here, we must parse the language
of the Final Rule to see whether it can be interpreted
to make a sensible argument for the approach EPA
adopted. We find that it cannot.

As we have said, EPA, in its Proposed Rule, expressed
a tentative preference for an approach that combined
screening levels and BDAT. It indicated that it thought
either that approach or BDAT alone was consistent with
the statute, and recognized that there were myriad un-
certainties inherent in any attempt to model the health
and environmental effects of the land disposal of hazard-
ous wastes. It initially concluded, however, that despite
those uncertainties, the better appreach was to adopt the
combination of screening levels and BDAT. Nevertheless,
in the Final Rule, it rejected its earlier approach, and
adopted a regime of treatment levels defined by BDAT
alone.

In order fully to convey the inadequacy of EPA’s ex-
planation, we quote the relevant portion of the Final Rule
at length:

Although a number of comments on the proposed
rule favored the first approach; that is, the use of

Neti AS a Niet

AD Rt IA de A AE LE ane ral Ee

19a

screening levels to “cap” treatment that can be
achieved under BDAT, several commenters, includ-
ing eleven members of Congress, argued strongly
that this approach did not fulfill the intent of the
law. They asserted that because of the scientific un-
certainty inherent in risk-based decisions, Congress
expressly directed the Agency to set treatment stand-
ards based on the:capabilities of existing technology.

The Agency believes that the technology-based ap-
proach adopted in today’s final rule, although not the
only approach allowable under the law, best responds
to the above-stated comments. Accordingly, the final
rule establishes treatment standards under RCRA
section 3004(m) based exclusively on levels achiev-
able by BDAT. The Agency believes that the treat-
ment standards will generally be protective of hu-
man health and the environment. Levels less strin-
gent than BDAT may also be protecitve.

The plain language of the statute does not compel
the Agency to set treatment standards based ex-
clusively on the capabilities of existing technol-
ogy. . . . By calling for standards that minimize
threats to human health and the environment, the
statute clearly allows for the kind of risk-based
standard originally proposed by the Agency. How-
ever, the plain language of the statute does not pre-
clude a technology-based approach. This is made
clear by the legislative history accompanying the
introduction of the final section 3004(m) language.
The legislative history provides that “[T]he requi-
site levels of [sic] methods of treatment established
by the Agency should be the best that has been dem-
onstrated to be achievable’ and that “[T]he intent
here is to require utilization of available technology
in lieu of continued land disposal without prior treat-
ment.” (Vol. 130, Cong. Ree. 9178, (daily ed., July
25, 1984)). Thus, EPA is acting within the author-

20a

ity vested by the statute in selecting [sic] to promul-
gate a final regulation using its proposed alternative
approach of setting treatment standards based on
BDAT.

The Agency believes that its major purpose in
adopting the risk-based approach of the proposal
(i.e., to allow different standards for relatively low-
risk, low-hazard wastes) may be better addressed
through changes in other aspects of its regulatory
program. For example, EPA is considering the use
of its risk-based methodologies to characterize wastes
as hazardous pursuant to section 3001.

51 Fed.Reg. at 40,578.

To summarize: after EPA issued the Proposed Rule,
some commenters, including eleven members of Congress,
chastised the agency on the ground that the use of screen-
ing levels was inconsistent with the intent of the statute.
They stated that because of the uncertainties involved,
Congress had mandated that BDAT alone be used to set
treatment standards. EPA determined that the “best
respon[se]” to those comments was to adopt a BDAT
standard. It emphasized, however, that either course
was consistent with the statute (and that it was there-
fore not required to use BDAT alone). Finally, it as-
serted, without explanation, that its major purpose in
initially proposing screening levels “may be better ad-
dressed through changes in other aspects of its recula-
tory program,” and gave an example of one such aspect
that might be changed.

This explanation is inadequate. It should go without
saying that members of Congress have no power, once a
statute has been passed, to alter its interpretation by
post-hoe “explanations” of what it means; there may be
societies where “history” belongs to those in power, but
ours is not among them. In our scheme of things, we
consider legislative history because it is just that: history.

itil

2la

It forms the background against which Congress adopted
the relevant statute. Post-enactnient statements are a
different matter, and they are not to be considered by
an agency or by a court as legislative history. An agency
has an obligation to consider the comments of legislators,
of course, but on the same footing as it would those of
other commenters; such comments may have, as Justice
Frankfurter said in a different context, “power to per-
suade, if lacking power to control.” Skidmore v. Swift

& Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed.
124 (1944).

It is unclear whether EPA recognized this fundamen-
tal point. On the one hand, it suggested that the adop-
tion of a BDAT-only regime “best respond[ed]” to the
comments suggesting that the statute required such a
rule. On the other hand, EPA went on at some length
to establish that the comments were in error, in that
screening levels are permissible under the statute. EPA’s
“rationale,” in other words, is that several members of
Congress (among others) urged upon it the claim that
Proposition X (‘Congress mandated BDAT”’’) requires
Result A (“EPA adopts BDAT’’), and that although
Proposition X is inaccurate, the best response to the com-
menters is to adopt Result A.

Nor is anything added by EPA’s bald assertion that
its reason for initially preferring Result B (screening
levels) “may be” better served by other changes in the
statutory scheme. In its Proposed Rule, EPA had, after
extensive analysis of the various alternatives, come to the
opposite conclusion. It is insufficient, in that context, for
EPA to proceed in a different direction simply on the
basis of an unexplained and unelaborated statement that

it might have been wrong when it earlier concluded
otherwise.

ae ee th

hibshiaiaincidtt oe?

In the entire relevant text of the Final Rule, EPA
; neither invokes nor discusses the uncertainties inherent
in the land disposal process in support of its determina-

LL

22a

tion to use BDAT. EPA’s only mention of the concept
is in its description of the commenters’ argument that,
because of such uncertainties, Congress mandated BDAT
—an argument that EPA rejected. While it may be
that EPA intended that reference to act as an incorpora-
tion of all the uncertainties it outlined in its Proposed
Rule, or all the many challenges to its assumptions that
commenters submitted in response to the Proposed Rule,
that intent, if indeed it exists, is so shrouded in mist that
for this court to say that we could discern its outlines
would be as illogical as the agency’s explanation in the
Final Rule itself.

Accordingly, we grant the petitions for review in this
respect.

III. SECTION 3004(3) STORAGE PROHIBITION

HWTC and NRDC contend that the Administrator’s
regulation allowing generators to store wastes on-site for
periods of up to one year unless EPA “can demonstrate
that such storage was not solely for the purpose of ac-
cumulati[ng]” quantities of waste suitable for treatment,
40 C.F.R. § 268.50(b) (1988), violates Congress’ “plain
intent” in enacting section 3004(j) of RCRA. According
to these petitioners, this provision’s flat prohibition
against storage of wastes “unless such storage is solely
for [proper purposes],” 42 U.S.C. § 6924(j) (Supp. V
1987), requires generators—and not EPA—to bear the
burden of proving that their motives in storing prohibited
wastes are consistent with section 3004(j), no matter
what the circumstances. “By shifting the statutory bur-

den of proof of EPA .. .”, we are told, “the rule ef-
fectively allows a one year ‘override of the statutory pro-
hibition.”

It is unclear to what petitioners refer when they speak
of the “statutory burden of proof.” At common law, the
“burden of proof” concept bore two somewhat dissimilar
meanings. In classical applications, the party carrying

BAT Rie ye MARE Be + tha

28a

the burden of proof bore the risk of nonpersuasion of the
factfinder; in other words, the “burden of proof” custom-
arily implied the “burden of persuasion.” 9 WIGMORE,
EVIDENCE § 2486 (Chadbourn rev. 1981). A secondary
meaning developed, however, in service of the role of the
trial judge in che common-law tribunal. To enable the
judge “to keep the jury within the bounds of reasonable
action,” the party bearing the burden of proof had a
threshold responsibility of satisfying the judge that suffi-
cient evidence had been advanced “to form a reason-
able basis for the verdict.” Jd. § 2487, at 293. The dis-
charge of this so-called “burden of production” was a
prerequisite, at common law, to getting one’s case to the
jury at all.

In administrative proceedings, the APA provides a de-
fault rule for allocating proof burdens when regulatory
statutes do not set forth separate rules. Specifically, “the
proponent of a rule or order,”’ usually the agency in pro-
ceedings charging statutory violations, “has the burden
of proof.” 5 U.S.C. §556(d) (1982). We have held,
though, that the APA uses the term in its secondary
application; “the ‘burden of proof’ it casts upon the ‘pro-
ponent’ is the burden of coming forward with proof, and
not the ultimate burden of persuasion.” Environmental
Defense Fund, Inc. v. EPA, 548 F.2d 998, 1013 (D.C.
Cir.1976) cert. denied, 431 U.S. 925, 97 S.Ct. 2199, 53
L.Ed.2d 239 (1977); accord, Old Ben Coal Corp. v. In-
terior Bd. of Mine Operations Appeals, 523 F.2d 25, 30
(7th Cir.1975). As the House Report accompanying the
APA explains, “section [556(d)] means that every pro-
ponent of a rule or order or the denial thereof has the
burden of coming forward with sufficient evidence there-
for.” H. Rep. No. 1980, 79th CoNnG., 2D Sess. 34 (1946),
U.S. Code Cong. & Admin.News 1946, p. 1195. While
the locus of the ultimate burden of persuasion may be
unclear—indeed, it may rest on the opponent of an agency
order, see 83 K. DAvis, ADMIN. L. TREATISE § 16.9 at 258
(2d ed. 1980)—it is beyond doubt that the initial burden

24a

of going forward with a prima facie case of unlawful
conduct rests on the agency charging the statutory viola-
tion, unless the regulatory statute provides otherwise.

Insofar as petitioners allege that EPA has shifted this
threshold burden of going forward from the regulated
industry to itself in contravention of RCRA, their con-
tention plainly runs aground on the APA.‘ For under
the APA’s guiding provisions, “‘[no] agency is entitled
to presume that the conduct of any person or status of
any enterprise is unlawful or improper” unless the
agency’s organic statute provides otherwise. Environ-
mental Defense Fund, Inc., 548 F.2d at 1014-15 (quoting
S.REP. No. 752, 79th Cong., 1st Sess. 22 (1945)); see
also Industrial Union Dept., AFL-CIO v. American Pe-
troleum Inst., 448 U.S. 607, 653 & n. 61, 100 S.Ct. 2844,
2869 & n. 61, 65 L.Ed.2d 1010 (1980) (opinion of Stev-
ens, J.). Petitioners point to nothing in RCRA that
purports explicitly or implicitly to alter the APA’s back-
ground rule placing this threshold burden of going for-
ward on the agency. The language of section 3004(j) is
silent as to allocations of production burdens (or, for that
matter, the ultimate burden of persuasion) between the
agency (the charging party) and the regulated respond-
ent. The legislative history of RCRA’s storage prohibi-
tion, as cited to us by HWTC and NRDC, is equally un-
illuminating; it merely repeats the proscription of section

4 EPA has provided, with respect to its regulatory programs gen-
erally, that “[t]he complainant has the burden of going forward
with and of proving that the violation occurred as set forth in the
complaint. ...” 40 C.F.R. § 22.24 (1988) (emphasis added). This
regulation can be read as locating the burden of persuasion on the
agency in proceedings under any of the statutes it administers;
nevertheless, this passage was not cited to the court by either party
and we therefore do not have the agency’s interpretation of this
regulation before us. In any event, as we note infra, RCRA does
not speak te the allocation of production or persuasion burdens in
administrative proceedings. To the extent petitioners allege a
misallocation of the burden of persuasion under § 3004(j), as such,
we reject that contention as well.

| -

25a

3004(j). And petitioners identify no other provision in
the statute that so much as even addresses procedural
burdens in acministrative proceedings under RCRA. See
generally 42 U.S.C. § 6928 (1982 & Supp. IV 1986) (gov-
erning enforcement proceedings). The Administrator’s
interpretation of section 3004(j) to comport with the pro-
cedural tradition of the APA can hardly be termed un-
reasonable in this setting. See Chevron U.S.A. Inc. v.
Natural Resources Defense Council, 467 U.S. 837, 843,
104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (“if the
statute is silent or ambiguous with respect to [a] spe
cific issue, the question for the court is whether the
avency’s answer is based on a permissible construction
of the statute”). Were the Administrator, thus, to assess
noncompliance penalties against a generator in the belief
that the generator had accumulated prohibited wastes for
improper purposes, the generator would be entitled to air
the agency’s charges in a public factfinding hearing. See
42 U.S.C. § 6928(b) (Supp. V 1987). And at any such
hearing, the Administrator, as the “proponent” of the
agency compliance order, would be required to come for-
ward at least with a prima facie case suggesting im-
proper storage. 5 U.S.C. § 556(d) (1982); see Environ-
mental Defense Fund, Inc., 548 F.2d at 1014-15; Old Ben
Coal Corp., 523 F.2d at 30. As we read the challenged
regulation, as such, it simply sets forth in RCRA ter-
minology the APA’s default rule regarding the burden
of production; to wit, “unless the Agency can demonstrate
that [the generator’s}] stérage [of prohibited wastes for
less than one year] was not solely for the purpose of
accumulation of such quantities of hazardous waste as
are necessary to facilitate proper recovery, treattent or
disposal,” the storage will not be penalized under RCRA.
The regulation shifts nothing; it places no evidentiary
burden on the agency that it would not otherwise be re-
quired to bear under section 556(d).

The Administrator, to be sure, has published compan-
ion regulations providing, with respect to storage of pro-

aaa eal, acca aii

26a

hibited wastes for periods greater than one year, that
“the owner/operator bears the burden of proving that
such storage was solely for the purpose of accumulation
of such quantities of waste as are necessary [for treat-
ment].” 40 C.F.R. § 268.50(c) (1988). But this in no
way suggests, as petitioners argue, that the Adminis-
trator has “reverse[d] the statutory presumption against
storage” for periods of one year or less. Rather, the Ad-
ministrator has simply determined (reasonably, we think)
that producing evidence that a generator has stored pro-
hibited wastes for a period greater than one year fulfills
the agency’s section 556(d) obligation to come forward
in administrative proceedings with a prima facie case of
unlawful storage. Once the Administrator makes such
a prima facie showing, of course, the burden may per-
missibly shift to the generator to demonstrate that such
lengthy storage was in fact motivated by legitimate con-
siderations under RCRA. See First Nat’l Bank of Bel-
laire v. Comp. of Currency, 697 F.2d 674, 683 (5th Cir.
1983); Environmental Defense Fund, Inc., 548 F.2d at
1014-15; Old Ben Coal Corp., 523 F.2d at 30.

At bottom, what petitioners quarrel with is the precise
point at which the Administrator can satisfy his initial
burden of production in proceedings charging a section
3004(j) violation solely by introducing evidence of the
duration of the generator’s storage. Indeed, petitioners
conceded at oral argument that they in all likelihood
would not have challenged the Administrator’s proposed
rule—providing a 90-day storage window—had it been
carried forward. But petitioners offer no basis to ques-
tion the Administrator’s professional judgment on this
score. The record ampiy supports the Administrator’s
conclusion that aggregation: of wastes for proper treat-
ment may require accumulation for periods of up to one
year. It was eminently reasonable, under the circum-
stances, for the Administrator to determine that he
would have to come forward with more than the mere
duration of storage for less than one year to make out a

i a ee ee

27a

prima facie case under section 3004(j). Accordingly, we
hold that 40 C.F.R. § 268.50(b) is reasonable and con-
sistent with RCRA.

IV. TESTING RESPONSIBILITY

As part of its implementation of the Hazardous and
Solid Waste Amendments of 1984 (“HSWA”), Pub.L.
No. 98-616, 98 Stat. 3221, the EPA developed an en-
forcement plan to assure that wastes that are prohibited
from land disposal will not make their way into the
ground. Under the EPA’s scheme, restricted wastes will
foiiow one of two paths. First, if the generator of the
waste determines that he is managing a restricted waste
and the waste does not meet the applicable treatment
standards, he must notify the treatment facility of the
appropriate treatment standards, see 40 C.F.R. § 268.7
(a) (1); the treatment facility is then required, pursu-
ant to 40 C.F.R. § 268.7(b), to test the treatment residue
to assure that the waste, once treated, meets those stand-
ards before forwarding the waste to a land disposal fa-
cility,* which is also required to test the waste, 40 C.F.R.
$ 268.7(c). Alternatively, if a generator determines that
he is managing a restricted waste, but that the waste can
be land disposed without further treatment, he may ship
the waste directly to landfill operators, the final handlers
of the waste who, under the EPA scheme, bear ultimate
responsibility for testing and determining that land dis-
posed wastes meet the applicable treatment standards.
See 51 Fed.Reg. 40,597 ( November 7, 1986).

Although earlier handlers of wastes—both waste gen-
erators and treatment facilities—are also required by the
regulations to certify that waste leaving their control and
marked for land disposal meets the appropriate treat-
ment standards, only the latter are expressly required

5 As the EPA announced in the preamble to its final rules, “These
testing requirements for treatment residuals apply to generators
who treat, store, and dispose onsite.” 51 Fed.Reg. at 40,598.

28a

to test the waste in order to certify compliance. See 40
C.F.R. § 268.7(b). Generators of waste are “recom-
mend{ed|” to conduct “fa ormprchensive ara'ysis of each
waste stream ... at least annually,” 51 Fed.Reg. at
40,598, but in the end the agency’s regulations leave
generators the option of certifying that their wastes
comply with treatment standards on the basis of, inter
alia, their “knowledge” of the waste:

If a generator determines that he is managing a
restricted waste under this part, and determines
that the waste can be land disposed without further
treatment,

with each shipment of waste he must submit, to the land
disposal facility, a notice and a certification stating that
the waste meets the applicable treatment standards .. .

(ii) The certification must be signed by an author-
ized representative and must state the following:

I certify under penalty of law that I personally have
examined and am familiar with the waste through
analysis and testing or through knowledge of the
waste to support this certification that the waste
complies with the treatment standards specified in
40 C.F.R. Part 268 Subpart D and all applicable
prohibitions set forth in 40 C.F.R. 268.32 or RCRA
section 3004(d). I believe that the information I
submitted is true, accurate and complete. I am
aware that there are significant penalties for sub-
mitting a false certification, including the possibility
of a fine and imprisonment.

40 C.F.R. § 268.7(a) (2) (emphasis added).

HWTC and NRDC challenge the agency’s decision to
allow generators to rely on their knowledge to certify
that wastes are within treatment standards. Petitioners
note that wastes requiring treatment must be tested be-
fore being sent to land disposal facilities, and they there-
fore argue that it is arbitrary and capricious for the

a ee es

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+
x
:
5
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29a

agency to fail to require generators of waste to test
their waste streams in order to certify that admittedly
restricted wastes conform to the applicable treatment
standards. They charge that since the applicable treat-
ment standards are stated in terms of specific and mi-
nute concentrations of hazardous constituents, without
actual test data, “generators cannot possibly determine
whether their wastes are generated meet these treatment
standards and can be land disposed.” Brief for Peti-
tioners HWTC and NRDC at 14.° They urge this court
to replace the agency’s rule with a requirement of their
own: “{W]astes, which a generator has determined (by
whatever means) to be: 1) hazardous and 2) subject to
a land disposal restriction (e.g., they are a listed solvent
or dioxin waste), must be tested by the generator if the
generator is to certify that the wastes meet treatment
standards and can be transported directly to a land dis-
posal facility.’ HWTC/NDRC Reply Br. at 12 (empha-
sis in original). This is a requirement we are unwilling
to impose.

First, unlike petitioners we find it neither nonsensical
nor absurd to expect that generators may to some extent

6 As a preliminary matter, we can dismiss HWTC’s and NRDC’s
argument that the rule allowing generators to rely on their knowl-
edge of their waste somehow reflects a technical defect in the rule-
making, inasmuch as it “conflicts” with the agency’s proffered
explanation of its rules. Petitioners point out that the preamble to
the final rules states that generators are “‘responsible for testing and
recordkeeping,” 51 Fed.Reg. at 40,597, but the rule does not contain
any such absolute requirement. However, as was noted at oral
argument, the preamble states just a few lines later that generators
may make determinations about the hazardous nature of their wastes
and the treatment required “based on waste analysis data, knowledge
of the waste, or both. Where this determination is based solely on
the generator’s knowledge of the waste, the Agency is requiring that
the generator maintain in the facility operating record all support-
ing data used to make this certification.” Jd. (emphasis added).
Thus, it is clear to us that the preamble does not reflect a fundamen-
tal conflict with the rule as adopted, but rather merely states it in a
different way.

30a

“know their waste” without testing each batch produced.
Indeed, waste generators who apply the same methods
to the same inputs in the same manner as part of the
same production process every day are, after a while,
likely to be in a very good position to know the hazardous
contents in their waste. As we read the EPA’s rules and
statements during the rulemaking process, the agency’s
scheme does not allow generators to make guesses about
the hazardous nature of their wastes without empirical
or analytical foundation. Rather, waste generators are
allowed to rely on actual “knowledge” they have ac-
quired only if such knowledge enables them to certify
that their waste complies with applicable treatment
standards. Generators are required to keep records of
all data that goes into their certifications, see 40 C.F.R.
$ 268.7(a) (4), and they are subject to penalties for er-
roneous certifications. Thus, contrary to petitioners’ as-
sertion that “nothing in the rule itself . . . requires
generators shipping wastes directly to a landfill to test
the waste to determine compliance with the treatment
standards,” Letter from HWTC (March 28, 1989) at 2,
the EPA’s scheme will necessarily require at least some
initial testing of generators’ waste stream in order to
comply with the rules’ plain directives.‘ If down the road
the generators’ familiarity with their wastes does indeed
render them capable of certifying the wastes’ contents
without conducting more frequent testing, then we see no
reason to compel the EPA to require such unnecessary
testing.

Furthermore, we do not find the EPA’s decision to re-
quire treatment facilities to conduct testing but to allow
generators to rely on their knowledge to be “arbitrary.”
The rulemaking record adequately reflects the EPA’s
sense that while generators can be expected to have rea-

7 Cf. 51 Fed.Reg. at 40,597 (“A waste analysis must be conducted
[by the generator of the waste] if there is reason to believe that the
composition of the waste has changed or if the treatment process
has changedr4.— -

|

3la

sonable knowledge of familiar wastes, off-site treatment
facilities do not always have similar familiarity with the
waste they handle. Moreover, it is the treatment facil-
ity’s job to transform waste otherwise deemed too dan-
gerous to permit into landfills into acceptable form. It is
therefore not irrational for the EPA to introduce a
backup, arguably “redundant” testing stage for these
wastes requiring treatment, and even to consider this a
“critical” stage in the process. See 51 Fed.Reg. at
40,597.

Although the agency’s certification system may be
somewhat imprecise with regard to generators of waste,
this imprecision is not fatal. Rather, the EPA has ex-
plicitly stated that the crucial stage in the process, upon
which the agency has placed its most heavy reliance, is
the point at which the waste reaches the land disposal
facility: at this juncture, just prior to land disposal,
waste must be rigorously tested to confirm that it is what
others have represented it to be and that it may per-
missibly be land disposed. Given the agency’s reliance
on testing by landfill owners and operators to intercept
erroneously identified waste, we cannot say that the EPA
acted arbitrarily or capriciously in deciding not to re-
quire elaborate and even redundant testing * by genera-
tors presumably able to identify in a large number of
eases the hazardous components of the waste they gen-
erate.

HWTC and NRDC further argue that the testing re-
quired of disposal facilities will be inadequate to assure

8 Petitioners charge that the EPA’s claim that it declined to
require generator testing on the ground that it would be redundant
was “nothing more than a post hoc rationalization of counsel which
is not contained in the administrative record.” Reply Brief at 10.
However, in the proposed regulations the EPA clearly expressed its
preference for a scheme under which generator testing would not be
absolutely required for the particular reason, inter alia, that this
approach “does not require redundant testing. ...” 51 Fed.Reg.
at 1692.

32a

that only wastes that are permitted to be land disposed
will actually enter landfills.° In particular, they com-
plain that “substantial percentages of individual waste
shipments received by a landfill operator are not re-
quired to be tested for compliance with the treatment
standards” by actual testing. Letter from HWTC
(March 28, 1989) at 3. Despite these concerns, however,
the regulations are structured to assure that the fre-
quency of testing is sufficient to identify wastes that do
not comply with treatment standards.

For the purposes of compliance with the land dis-

- posal restrictions rule, a waste analysis plan for an
off-site disposal facility must address the pro-
cedures for screening incoming shipments of waste
to ensure that wastes received conform to the certi-
fication made by the generator or treatment facility.
That is, the waste analysis plan must address the
procedures necessary for determining whether an
extract of the waste or treated waste meets the
treatment standards.

51 Fed.Reg. at 40,598.'° In a sense, then, petitioners’
concerns are premature: while the EPA scheme is de-

® Petitioners apparently concede, contrary to intimations at oral
argument, that the substantive tests landfill operators are required
to conduct are adequate to identify hazardous components of the
waste they receive for disposal. As the agency points out, the
regulations require both treatment facilities and landfill operators
to use “the test method described in Appendix I of this part,” 40
C.F.R. §§ 268.7(b), 268.7(c) (referring to the “Toxicity Character-
istic Leaching Procedure”’)—a test that petitioners have called
“extremely stringent.” See Brief for Petitioners HWTC and
NRDC at 15. The focus of their challenge is apparently limited to
the allegedly inadequate frequency of testing.

10The preamble went on to discuss facilities where generation,
treatment and disposal all take place onsite, noting that “[lless
frequent testing may be appropriate when there are fewer and less
variable waste streams at combined facilities, but waste must be
tested if the composition or treatment method changes.” 51 Fed.
Reg. at 40,598. This passage permits an inference that the EPA is

ee on

Oe A RY AOE ae RUE te ee

33a

signed to assure adequate testing, which includes case-
by-case determinations of the frequency with which
actual testing will need to be conducted on waste ship-
ments, petitioners anticipate that the EPA will author-
ize testing schedules that are inadequate. We prefer to
anticipate that the agency will faithfully execute its
responsibilities under the statute, and will impose test-
ing requirements that will guarantee that Congress’
purposes in enacting the statute are implemented. If the
agency does not live up to this expectation, there will be
time and opportunity for petitioners’ challenge.

At its base, the challenge of HWTC and NRDC is
undergirded by a peculiar set of epistemological assump-
tions. In briefy these petitioners appear to argue that
only much more frequent testing of waste at every stage
of its handling would ever allow us to “know” whether
any given batch of waste (itself an arguably “arbitrary”
dividing line) conforms to the EPA’s treatment stand-
ards. Absent continuous testing at the point of genera-
tion, they argue, generators cannot certify what levels
of hazardous constituents their waste contains; and if
landfill operators are not required to test each individual
waste shipment for compliance with the treatment stand-
ards by the stringent “Toxicity Characteristic Leaching
Procedure” testing method, then the testing requirement
at the land disposal stage cannot be relied upon to catch
waste that generators have erroneously certified as fall-
ing naturally within these standards.

While we have no desire to enter a metaphysical de-
bate over the source and nature of all knowledge, com-
mon sense compels recognition of the fact that much of
what we think of as “knowledge” in the practical world
is nothing more than extrapolation from a more limited
set of experiences. As relevant to the present case, we

attuned to the need to require relatively more frequent testing
when waste streams coming into a land disposal facility are more
numerous and variable.

34a

cannot say that the statute requires testing beyond what
is practically necessary to assure with a high degree of
confidence that prohibited wastes are not being land
disposed. We therefore hold that the EPA’s decision to
allow generators to rely in appropriate circumstances on
their knowledge of their restricted waste to certify that
it naturally meets treatment standards is reasonable.

V. CONCLUSION

We conclude that the solvents and dioxins rule is not

arbitrary, capricious, or contrary to RCRA in any of

“ the respects argued by petitioners, but remand the mat-

ter for the EPA to clarify its reasons for adopting the

Final Rule in preference to the Proposed Rule. In order

to avoid disrupting EPA’s regulatory program, we will

withhold issuance of our mandate for 90 days, during

which the agency may either withdraw the Final Rule or
publish an adequate statement of basis and purpose.

Judgment Accordingly.

SILBERMAN, Circuit Judge, concurring in part and
concurring in the result:

I concur in all of the majority’s per curiam opinion
but its purported resolution of the Chevron “Step II”
question concerning the reasonableness of BDAT treat-
ment standards as a construction or application of
RCRA. While CMA’s “Step I” challenge to EPA’s con-
struction of RCRA section 3004(m)—i.e., whether the
statute “clearly forecloses” the approach charted by the
agency, Maj. op. 361-62—-was available for final judicial
review, I do not believe it proper for the court to have
reached the Step II question as to whether the selection
of BDAT treatment levels was “a reasonable policy
choice for tne agency to make.” Chevron U.S.A. Inc. v.
Natural Res. Defense Council, 467 U.S. 837, 845, 104
S.Ct. 2778, 2788, 81 L.Ed.2d 694 (1984). In the absence
of a valid agency explanation as to how it has attempted

EE

35a

to accommodate the competing interests Congress has
committed to its care via RCRA, it is in my view inap-
propriate (perhaps analytically impossible) even to ad-
dress, much less resolve, CMA’s challenge to the reason-
ableness of EPA’s treatment regime under the statute.
Because the court today remands for further EPA ex-
planation of its adoption of BDAT standards, the ma-
jority’s Chevron Step II discussion should be considered
dict.

[ agree with the majority’s conclusion that Congress
did not have a “specific intention” that technology-based
treatment standards not be employed in implementation
of section 3004(m), see Chevron, 467 U.S. at 845, 104
S.Ct. at 2783, and to that extent I further agree that the
questions of statutory interpretation presented by CMA’s
petition are appropriately resolved under Step II of
Chevron. My reading of the critical statutory language
requiring EPA to set treatment standards so _ that
“threats to human heaith and the environment are mini-
mized” suggests a threshold ambiguity as to whether
Congress intended the agency, insofar as it was techno-
logically possible, to eliminate any statistically discerni-
ble risk to human health and the environment, or
whether Congress intended there to be some sort of ba!-
ancing. The dictionary definition of the word “mini-
mize,” see Maj. op. at 361, provides no ready answer to
this question; a command that the agency “reduce” a
threat ‘“‘to the smallest possible degree” leaves open the
factors that the agency can account for in determining
what is, in fact, possible (or feasible?) under the cir-
cumstances.

We are also in agreement over the significance that
EPA must attach to actual or reasonably perceived
“threats to human health and the environment” in the
course of fleshing out section 3004(m)’s meaning. As
the majority notes, EPA is not

36a

free . . . to require generators to treat their waste
beyond the point at which there is no ‘threat’ to
human health or the environment. That Congress’s
concern in adopting § 3004(m) was with health and
the environment would necessarily make it unrea-
sonable for EPA to promulgate treatment standards
wholly without regard to whether there might be a
threat to man or nature.

Maj. op. at 362. EPA is instead obliged to explain how
its selection of BDAT treatment standards—which, as
CMA notes, will require generators to treat certain
wastes to levels of purity beyond those EPA requires for
drinking water—is guided by RCRA’s concern with
health and environmental threats. But the majority per-
suasively demonstrates that EPA’s explanation in the
Final Rule falls woefully shy of this mark as a matter
of administrative law, leaving the court without any hint
whatsoever as to EPA’s theory of the compatibility of
the Final Rule with RCRA’s purposes. Under these cir-
cumstances, resolution of the statutory questions con-
fronting the court, at least those belonging to Step II of
Chevron, is an improper exercise of judicial creativity.

In order to conclude—as the majority does—that the
accommodation of competing RCRA policies reflected in
the agency’s treatment regulation is “one that Congress
would have sanctioned,” United States v. Shimer, 367
U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)
(quoted in Chevron, 467 U.S. at 845, 104 S.Ct. at 2783),
the court necessarily must determine that the approach
is “rational and consistent with the statute.” NLRB v.
United Food & Comm’l Workers U., 484 U.S. 112, 108
S.Ct. 418, 421, 98 L.Ed.2d° 429 (1987). This requires
a determination that the agency has fashioned its ap-
proach in reliance on considerations made relevant by
Congress under the substantive statute, which in turn
requires an examination of the agency’s stated reasons
for adopting the challenged course. See, e.g., AFL-CIO

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37a

v. Brock, 835 F.2d 912, 917 (D.C.Cir.1987) (equating
Chevron’s second step with arbitrary and capricious re-
view of agency policies); NRDC v. EPA, 824 F.2d 1146,
1163 (D.C.Cir.1987) (striking down agency statutory
interpretation based on unreasonable “application of
[relevant statutory] factors”); see also Chevron, 467
U.S. at 848, 104 S.Ct. at 2782 (requiring affirmance of
administrative statutory construction if interpretation
is a “reasonable policy choice for the agency to make’’).
The critical inquiry, as such, in the court’s Chevron Step
II inquiry is “whether the agency has advanced what the
Chevron Court called ‘a reasonable explanation for its
conclusion that the regulations serve the . . . objectives
in question.’”’ Continental Air Lines v. Dep’t of Transp.,
843 F.2d 1444, 1452 (D.C.Cir.1988) (quoting Chevron,
467 U.S. at 863, 104 S.Ct. at 2791) (emphasis added).

EPA’s explanation in the instant case, however, is
utterly devoid of any rationale whatsoever for the
agency’s statutory construction or its policy choice. As
the court observes, EPA’s intentions in promulgating
treatment standard are “so shrouded in mist that for
this court to say that we could discern its outlines would
be as illogical as the agency’s explanation in the Final
Rule itself.” Maj. op. at 366. I would go further: I
think it doubtful that EPA attempted at all to explain
its presumptive view that the employment of BDAT
treatment standards across the board would reasonably
serve congressional intent. For after observing in the
Final Rule that the plain language and legislative history
of RCRA do not squarely preclude a technology-based
approach, EPA failed to indicate what statutory policies
tipped the balance in favor of that approach as opposed
to the initial health-screening levels announced in the
Proposed Rule. Before the court can determine that “the
agency’s answer is based on a permissible construction of
the statute,” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782,
the agency must explain how it has translated RCRA
into its treatment standards regulation.

38a

The majority’s Chevron Step II analysis itself con-
vincingly illustrates how important a role the agency’s
explanation of its policy accommodation plays in post-
Chevron federal judicial review of agency statutory in-
terpretation. Nowhere in its discussion does the majority
address the agency’s view of the way in which the BDAT
regime serves RCRA’s purposes; because the agency of-
fered no such view, this should not be surprising. This
part of the majority’s opinion is instead devoted exclu-
sively to the petitioner’s objection that, with respect to
certain solvents and dioxins, BDAT treatment levels will
result in treatment to “below established levels of haz-
ard.” See Maj. op. at 362. The majority responds to
CMA’s argument by pointing out that none of the “es-
tablished levels” to which CMA refers was developed un-
der a statutory standard requiring minimization of
“threats to human health and the environment.” But
EPA did not say that. We have before us no indication,
as the majority later observes, that EPA was driven
away from “established” health-screening levels on the
basis of the asserted incomparability of the statutory
standards under which those levels were determined.
Nor, as the majority later notes as well, see Maj. op. at
365-66, is there any indication that EPA was impelled
toward technology-based levels because of the “long-
term uncertainties associated with land disposal’ Con-
gress identified in RCRA. 42 U.S.C. § 6924(d) (1) (A).
The majority’s treatment of CMA’s—as opposed to EPA’s
—analysis at best suggests that CMA’s approach is not
compelled by the legislative text, a proposition relevant
only to Chevron’s first step.

Indeed, the majority’s discussion of the reasonableness
of EPA’s interpretation of the statute necessarily pro-
ceeds without reference to an agency interpretation be-
cause no such construction exists.’ One is left to wonder

1 The majority asserts, Maj. op. at 363 that the EPA, and not the
court, provided the basis for the interpretation found reasonable

¢
CAMERA Sats aN ar een

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39a

how the majority can give deference to a statutory con-
struction (or an explanation as to how an agency inia-
tive is consistent with the statute) that nowhere appears
in the Final Rule. The majority’s Chevron Step II anal-
ysis, in my opinion, is nothing more than an advisory
opinion to the effect that were the court presented with a
Final Rule that echoed the majority’s discussion of an
appropriate balance to strike among RCRA’s purposes,
the court would sustain the agency’s view of the statute.
As a consequence, the majority ends up deferring not to
an agency statutory construction, but rather simply to
a result. Assuming this judicial approach ever were per-
missible, surely after Chevron it no longer is.

Given the complexity of the subject matter and the
fundamental ambiguity in Congress’ direction, a com-
plete agency explication of its view of the statute would
be especially helpful in this case. For instance, the ques-
tion of how (and why) Congress would have intended
EPA to require generators to treat the wastewaters they
intend to pour into the ground to levels more pure than
Congress requires for drinking water drawn out of the
ground would surely benefit from the views of those to
whom Congress entrusted regulatory responsibility. More
fundamentally, it is incumbent upon EPA to identify the
incremental “threats to human health and the environ-
ment” that it hopes to address by opting uniformly for
more stringent technology-based standards in lieu of
health-based standards of whatever origin. Cf. Small
Refined Lead Phase-Down Task Force v. EPA, 705 F.2d

here. But the “catalog of uncertainties” the majority refers to are
all found in the discussion accompanying the Proposed Rule, in the
Initial Rule document, and in briefs to this court—not in the Final
Rule and accompanying explanation. Of course, only the agency’s
explanation of its ultimate choice, not its prior musings nor, ordi-
narily, its post hoc explanations in court, see FLRA v. United States
Dep’t of the Treasury, 884 F.2d 1446 (D.C.Cir.1989) ; Women Jn-
velved in Farm Ecoomics v. United States Dep’t of Agriculture,
876 F.2d 994, 998-1000 (D.C.Cir.1989), are proper subjects of
judicial review.

ar

40a

506, 523 (D.C.Cir. 1983) (“adverse health effects,” in
and of themselves, do not permit EPA “to justify any

. Standard at all, without explaining why it chose the
level it did’) ; United Steelworkers of America v. Marsh-
all, 647 F.2d 1189, 1207 (D.C.Cir.1980) (agency must
“explain the logic and the policies underlying any legis-
lative choice”), cert. denied, 453 U.S. 918, 101 S.Ct. 3148,
69 L.Ed.2d 997 (1981); Lead Indus. Ass’n v. EPA, 647
F.2d 1130, 1162 (D.C.Cir.) (choice between two policy
approaches must be explained), cert. denied, 449 U.S.
1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980); Industrial
U. Dep’t, AFL-CIO v, Hodgson, 499 F.2d 467, 476 (D.C.
Cir.1974) (“when [an administrator] is obliged to make
policy judgments . . ., he should so state and go on to
identify the considerations he found persuasive”). Only
then can the court legitimately defer to the agency’s con-
struction of RCRA, for proper judicial deference to an
agency interpretation requires an understanding of the
agency’s objectives that can only be gleaned from the
agency’s presentation of its rule. With all respect, the
majority’s analysis, however appealing, see Maj. op. at
362-64, cannot substitute for this obligatory agency
explanation.

I do not mean to ignore the conceptual distinction be-
tween review of an agency’s statutory construction and
of an agency’s actions under the arbitrary and capricious
standard. We have in the past said “[i]t would be in-
appropriate . . . to import wholesale [arbitrary and ca-
pricious review principles] and apply [them] in [the]
conceptually distinct arena” of statutory construction.
Continental Air Lines, Inc. v. Dep’t of Transp., 843 F.2d
1444, 1452 (D.C.Cir.1988). But at the same time we
have often recognized that Chevron’s second step and
review of an agency’s action under the arbitrary and
capricious standard, although starting from different
legal premises, often converge and sometimes overlap.
See, e.g., General Am. Transp. Corp. v. ICC, 872 F.2d
1048, 1053 (D.C.Cir.1989) ; AFL-CIO wv. Brock, 835 F.2d

4la

at 917; Natural Res. Defense Council v. EPA, 824 F.2d
at 1163; Rettig v. Pension Benefit Guaranty Corp., 744
F.2d 1388, 152 (D.C.Cir.1984). One thing, in any event,
is quite clear: these “distinct”? judicial review functions
proceed from a common foundation—the agency’s ex-
pressed view. Thus, if the agency has offered an inade-
quate explanation as to how its chosen policy is consist-
ent with Congress’ mandate, the court’s Chevron Step
II analysis is necessarily hypothetical.

It would appear that EPA faced with formidable po-
litical forces opposing its Proposed Rule, simply ac-
quiesced in the approach desired by those forces, but was
unwilling to offer as its own a statutory/policy rationale
to justify its acquiescence. In the Final Rule, EPA in
effeet stated that it recognized, and subordinated itself
to, the senators and congressmen who protested against
EPA’s Proposed Rule without in any way affirming the
legal (or policy} superiority of the legislators’ position.
My colleagues acknowledge EPA’s behavior is intolerable
as a matter of administrative law, see Meredith Corp. v.
FCC, 809 F.2d 863, 872-73 (D.C.Cir.1987) (holding that
FCC was obliged to address constitutional challenge to
fairness doctrine notwithstanding ‘“non-legislative ex-
pressions of congressional concern” that the question be
reserved for Congress); Sierra Club v. Costle, 657 F.2d
298, 404-10 (D.C.Cir.1981) (holding that EPA’s ex parte
exchanges with congressional leaders and White House
officials did not render informal rule procedurally infirm
since EPA set forth its own independent rationale for
the rule selected), but nevertheless “rescue” EPA from
its predicament by supplying the statutory ‘policy analy-
sis which, if it had been adopted by EPA, would have
obviated the need for a remand. Under the circum-
stances, I do not know why the court’s remand is other
than an empty gesture, one which conforms to principles
of judicial review of agency policymaking only in form.

42a
APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

ee er

No. 86-1657

HAZARDOUS WASTE TREATMENT COUNCIL,
Petitioner
Ve

U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent

and Consolidated Cases

Petitions for Review of a Rule of the
Environmental Protection Agency

Before: Wald, Chief Judge; Silberman and D. H. Gins-
burg, Circuit Judges

JUDGMENT
[Filed Mar. 14, 1990]

Upon consideration of this Court’s opinion of September
15, 1989, of respondent’s Notice of Compliance With
Court’s September 15, 1989 Decision as Modified and of
the statement attached thereto, filed February 12, 1990,
it is

ORDERED, by the Court, that the petitions for review
herein are dismissed, and it is

43a

FURTHER ORDERED, by the Court, that costs in the
amount of $741.00 are awarded to respondent and taxed
against petitioners, and it is

FURTHER ORDERED, by the Court, that the Clerk
is directed to issue of certified copy of this order to re-
spondent, in lieu of a formal mandate.

Per Curiam
FOR THF COURT:

CONSTANCE L. DUPRE,
Clerk

By: /s/ Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk

44a

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-1657

HAZARDOUS WASTE TREATMENT COUNCIL,
Petitioner
V.

U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent
and Consolidated Cases

Before: Wald, Chief Judge, Silberman and D. H. Gins-
burg, Circuit Judges
ORDER
[Filed Mar. 14, 1990]

It is ordered, by the Court, sua sponte, that the man-
date of the Court inadvertently issued on March 5, 1990,
be, and the same hereby is, recailed.

Per Curiam
FOR THE CouRT:

~~~ CONSTANCE L. DUPRE,
Clerk

By: /s/ Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk

A ee Ri NT We IN

45a
APPENDIX C
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 262, 264, 265, 268, 270, and 271
[SWH-FRL 3089-5]

Hazardous Waste Management
System; Land Disposal Restrictions

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: The Environmental Protection Agency is
toda

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1833%3A1. Public record. Not legal advice.