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Case number 21-1187, public employees for environmental responsibility petitioners versus environmental protection agency.

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Ms.

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Dienerstein for the petitioner, Ms.

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Acepaw for the respondent.

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Ms.

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Dienerstein, good morning.

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Good morning, Your Honors.

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My name is Paula Dunderstein, and I represent the petition of Public Employees for Environmental Responsibility for PEER for short.

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I first want to just tell you a little bit about PEER and why we have standing, and then I will get into the substance of the case, which we believe turns on the fact that the agency

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advanced, impermissible, erroneous interpretations of the governing statute, the Resource Conservation and Recovery Act, or RCRA.

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So 11 years ago, here filed a petition with Dr. Kate Jenkins, who was then an EPA chemist in the RCRA program, asking to amend the corrosivity characteristic under RCRA to cover more wastes, particularly

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hazardous waste with a pH between 11.5 and 12.5 and also to expand the characteristic to cover non-aqueous meaning like solid or liquid, excuse me, solid or gaseous wastes.

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The petition sought to bring these wastes into RCRA's stringent cradle to grave regulation of hazardous waste in order to protect human health and the environment.

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Dr. Jenkins, our co-petitioner, was a leading person in bringing to public attention the fact that the first responders at the World Trade Center disaster were continuing to suffer from illnesses and injuries due to the hazardous conditions there.

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And that was part of the impetus for bringing this petition.

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that the injuries these people were suffering were in part due to the corrosive nature of the dust from the explosions, and yet because of the lackness of the corrosivity characteristic, those were not classified as hazardous wastes.

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So here works on behalf of public employees in environmental fields in order to ensure that the nation's public

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laws concerning the environment and programs are implemented properly.

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In addition to people like Dr. Jenkins, who is one of our supporters, we also have people, the declarants that we use for standing, who are directly affected by what is considered a hazardous waste.

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Our declarants either work or live in close proximity to hazardous, excuse me, to non-hazardous waste

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disposal sites that would not be able to accept some of the waste that they now accept if our petition were granted.

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So turning to the merits, the denial of the petition here was not based on EPA's review of technical scientific matters

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for an exercise of policy discretion that was permissible, that would normally have this court give deference to its decision.

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It was based on these erroneous interpretations of the statute.

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Ms.

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Dinnerstein, it strikes me as, even if we were to agree with you on some of these merits, you have a very steep challenge based on the standard of review.

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Is it standing?

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No, standard of review.

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Is it standing?

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Yes.

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Someone like your client petitions an agency for rulemaking and the agency declines.

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My understanding is that this is a deference so broad as to make the process akin to non-reviewable.

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I mean, the agencies have discretion to decide how they want to spend their resources and they just denied your request.

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And it's not that we're de novo considering whether we agree with you.

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We have to find that they've

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really abuse their discretion.

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It's even beyond abusive discretion.

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It says we may reverse the agency's choice only for compelling cause, such as plain error of law or fundamental change in the factual premises previously considered by the agency.

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So I would contend that the case you're citing and cases like that are actually distinguishable because in those cases,

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The petitioner was asking the agency to regulate in an area that maybe they hadn't regulated in before or to do something new.

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And what the court was saying was that the agency has the discretion as to how it's going to use its resources, what it's going to pick and choose to work on.

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This is not a case like that.

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There is a corrosivity characteristic.

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It exists.

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There's no discretion as to not

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Do you have any precedent that supports what you're saying to distinguish the standard?

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Well, the precedents that we have will say that if EPA makes a decision like this, not to regulate a waste, and it's based on improper interpretation of the statute, there is no deference.

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There's no deference under Chevron.

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Because you're at shelter on step one.

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We're talking about in the context of a request for rulemaking.

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Yes.

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Do you have any precedent like that?

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So for instance, in the case of Hazardous Way Treatment Council versus EPA, DC Circuit 2016, this was a challenge concerning a listing.

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And so what was the name of the case?

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Hazardous Waste Treatment Council versus EPA.

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Okay, I've got it.

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Yeah.

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Where are you saying?

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And there the court said that the agency came up with all kinds of reasons that it shouldn't be listed, you know, basically policy reasons adverse consequences.

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And what the court said is that

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Regardless of whether these are true or not, it's the agency's obligation to comply with the dictates of Congress and ours to enforce them.

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Oh, I don't think this was a petition for a rulemaking, from what I read.

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So another example that is

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Somewhat relevant is the Supreme Court case of Massachusetts versus EPA, where that was a petition to issue a regulation.

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And although the court recited that there's a very strict standard of review or a declination to grant a petition, that on the legal issue of whether or not there is authority

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the statutory authority to regulate in this area, the court did not grant deference.

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They did the usual, it's the court's responsibility and not the agencies or anyone else to read the statute and determine the law.

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I mean, wasn't that a situation where the Supreme Court said the agency mistakenly assumed that they could not regulate in that area and so the answer they gave to the petition for rulemaking was improper and they sent it back?

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That's not this case.

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I mean, yes, where an agency says we're not going to engage in rulemaking that you've requested because we don't have authority, Supreme Court said, well, we can look at that.

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And if you're wrong and if you really do have authority, we'll reverse it.

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And that standard review is not so rigid as to knock that case out.

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I didn't think that was this case here.

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They're not saying they can't regulate.

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They're saying they already have them.

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They don't see any reason to change what they've done.

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I think that's a question.

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I mean, it was a slightly different situation.

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But the point I'm trying to make is that on the legal issues, such as whether there's authority to regulate here that's different legal issues, the court has the authority

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and the responsibility to interpret the statute and decide what the statute says.

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And just because it's a petition that under a circumstance where EPA say had lots of discretion as to whether they even wanted to regulate in this area, the court is not going to force EPA to choose to do something within its discretion.

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And the Massachusetts case, I also have

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quote here from the case where they say, but once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute.

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And that's what we're saying here.

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Reasons for inaction do not conform to the authorizing statute.

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Did you address the timeliness of your claims specifically?

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Yes.

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So the EPA argued

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that our complaint was not timely because we were challenging certain things that were decided in 1980 when the original regulation was promulgated.

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We contend that that is not true.

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What they say is that, for instance, when they promulgated the regulation, they decided that because of the liquid definition of hazardous waste,

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which says that hazardous waste is one which may cause, which may present a hazard to health or the environment when improperly managed, that therefore they could take that word managed and run with it, so to speak, and say that they could consider any management considerations in it, even if a waste otherwise implied

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or fit within the definition of a hazardous waste, they could say, well, we're not going to call it a hazardous waste because we're making a management consideration that this waste has a beneficial use and we're not going to regulate it.

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Now, EPA did not say that in 1980.

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What they said in 1980 was that, well, you know, we think that the standard, the 11.5 pH standard is unnecessarily conservative.

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basis we have in the International Labour Organization encyclopedias as 11.5, but we're going to make it 12.5 because we think that's unnecessarily conservative and the encyclopedia applied to eyes and not skin.

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When it came to the time to deny our petition, they abandoned that rationale.

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So the statutory rationale that they have in which we say is impermissible now wasn't made in 1980.

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In addition to that, even if you were to say that they did consider some of the same things in 1980 as now, we think this is a clear case of reopening.

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They considered this petition for 10 years.

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They considered hundreds of documents.

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They came up with statutory interpretations, some of which I'm going to go into in addition to the one about the definition of hazardous waste that were not in the 1980 decision.

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They considered many, many more studies.

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May I ask you about language in the 1980 decision that seems to suggest that they did consider management?

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It says,

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All advocated, including solids and the coercivity characteristic, but none describes situations where the improper disposal of such waste would be likely to cause damage.

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I'm sorry, I think you're the last one.

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Improper disposal would be likely to cause damage, so aren't they relying on management?

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They did rely on management of waste, but they didn't give a statutory basis for that like they did in 1980.

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What we're challenging here is that they actually changed their rationale from 1980 until the condition denial in 2021.

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1980, they just said it was too strict and they said the ILO encyclopedia only applied to eyes and not skin.

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They're not saying that anymore.

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They have admitted ILO encyclopedia, which is what they based the standard on, says 11.5.

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Anything above 11.5 is going to cause damage to skin.

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But then they're bringing in a new way.

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So to make sure I understand you, are you saying that they did rely on the same rationale in 1980, they just didn't cite a statute, and then they relying on the same study, the ILO, but they're emphasizing a different part of it.

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And to you, that's a change.

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No, what I'm saying is that they did not have the statutory interpretation that they have now back in 1980, which is what they say is time-barred.

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Their brief claims that their statutory interpretation of the definition of hazardous waste is what was decided in 1980, and therefore it's time-barred now.

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But that is not what they did in 1980.

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I understand your position.

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Thank you.

[00:14:31] Speaker 02:
It's because you're over your time.

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We'll give you a couple minutes in reply.

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We'll give you a couple minutes in reply.

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Thank you.

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So the statutory misinterpretation.

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This is interesting.

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You're out of time.

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We'll give you a couple minutes in reply.

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Oh, I'm sorry.

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That's OK.

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Thank you very much.

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May it please the court, Sarah Isher for the United States.

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With me at counsel's table is Susan Johnson from EPA's Office of General Counsel.

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The inquiry before the court is a narrow one, and Judge Pan, you honed in direct precisely on the points that I'd like to make, which is the inquiry before the court is whether EPA erred in denying peers' rulemaking petitions.

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Under this court's precedent, EPA's denial has afforded significant deference.

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Here seeks a rulemaking to revise the corrosivity characteristic by lowering the upper threshold of what's classified as corrosive from a pH of 12.5 to 11.5, including non-equeous waste.

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Here bears the burden of proofing this instance, a burden that it has not carried.

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The corrosivity characteristic was issued as part of a 1980 rulemaking that established a broad-based program and framework for categorizing and managing all hazardous waste.

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That regulation was just one of many regulations issued during this rulemaking, and for over 40 years it has functioned as intended to address the risks posed by hazardous corrosive waste to human health and the environment when such waste is improperly managed.

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In evaluating Peer's rulemaking petition, EPA was focused on the relief that Peer requested, a revision of the Corrosivity Regulation.

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and look specifically at whether there was a gap in regulation that granting peer's petition could address.

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In other words, EPA looked at whether waste not regulated under the core safety standard were causing injuries that could be addressed for EPA to lower the upper pH level and include non-aqueous waste.

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It didn't consider non-corrosive injuries, nor did it consider injuries outside of the waste management context.

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This focus was consistent with EPA's longstanding practice, the objective and purpose of RCRA,

[00:16:59] Speaker 02:
All right, Mrs. Hart, you need to not read because we have a rule against reading.

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Okay.

[00:17:04] Speaker 00:
Talk to us.

[00:17:05] Speaker 06:
Sorry about that.

[00:17:06] Speaker 06:
I'm going way too fast.

[00:17:07] Speaker 00:
So EPA cared... You want to start all over again?

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We missed everything.

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No, I'm just kidding.

[00:17:14] Speaker 06:
So EPA carefully considered your petition and reviewed the study cited.

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EPA also looked at new information and damage incidents that had arisen since the 1981.

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It considered the data and proposed a denial that addressed- Isn't this a reopening case?

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You essentially, not on the very initial determinations, certainly initial determinations as you concede in your brief, but you gave new rationale for some things and you went into some things in great length.

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So aren't you beyond that state form standard review, which is very, very favorable if it's just

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We'd like rulemaking.

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It looks like you reopened some matters in your own initiative.

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No, Your Honor, I would disagree that EPA reopened.

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There's four aspects that we claim are time barred in your petition for review.

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And in those four aspects, EPA did not undertake any sort of substantive reconsideration, which is what's required for reopeners.

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So the first is EPA's statutory interpretation of the definition of hazardous waste under 42 UIC 69035.

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EPA has, since the 1980 rulemaking, traditionally relegated the paragraph B for regulating most waste, including the characteristics of hazardous waste, such as corrosivity, but also the other characteristics, like nitability, reactivity, and toxicity.

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And that was clear in the 1980 rulemaking.

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If you look at JA4, which is the final denial, there's a footnote which bolts from the original rulemaking.

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And EPA lays out its statutory interpretation there.

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There was no re-opener because EPA merely restated its statutory interpretation.

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I thought you gave some new rationale in some places.

[00:19:01] Speaker 06:
I would disagree that there was a new rationale.

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This is in a case in which there's a gap in regulation.

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And what EPA did here was look at whether there was new information since 1980, since the 1980 rulemaking, to support a revision of the porosivity regulation.

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It looked at, it undertook its own review, which it wasn't required to do.

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But it looked at the information that peer supplied since 1980.

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And in support of lowering the pH, peer relied primarily upon global guidance that EPA found was neither binding nor directly relevant.

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And in support of including non-aqueous waste, peer relied primarily upon evidence of damage from the World Trade Center

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attacks, which for a variety of reasons, EPA not consider a possible waste mismanagement scenario that Ricker was designed to address.

[00:19:57] Speaker 00:
I mean, it sounds like the answer you're giving to the trade center is we're not really sure.

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So it doesn't fit the normal mold.

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So we're not going to treat it as if, I mean, it wasn't, there's no definitive science on that as I understand it.

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The dust from the World Trade Center,

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So EPA is not saying, look, there's a definitive scientific answer on that.

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That's not what I understand.

[00:20:23] Speaker 06:
Yeah, I think that's correct.

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I think EPA was unable to draw a causal connection between corrosive properties in the dust.

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and the injuries that were suffered.

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I think EPA would acknowledge that there were definitely adverse health effects.

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I mean, the World Trade Center cough is a very famous phenomenon, but that is not necessarily a corrosive injury.

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That's more of an irritant respiratory type of injury, which is what the corrosivity characteristic was not designed to address.

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But going back, I want to go back to

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What the time barred aspect in the in the reopener arguments because I just want to clarify that EPA does not contend that all aspects of first petition is time barred.

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EPA recognizes that peer under reg ref has the ability to petition to revise the concursivity characteristic.

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There's no question under the statute

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But there is a statute of limitations in RCRA under 42 USC 6976A.

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And it's time to challenge that original 1980 corrosivity regulation has passed.

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So to the extent that here seeks to revise the corrosivity regulation, EPA tailored its review to whether there was a justification based off of information that had arisen or information that was not available at the time of the 1980 rulemaking.

[00:21:43] Speaker 06:
And to the extent that EPA, or that, sorry.

[00:21:47] Speaker 00:
See, the statute says that any person can petition for promulgation amendment or repeal of any regulation.

[00:21:52] Speaker 00:
Yes, Your Honor.

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And the agency, and I can't remember how many statutory provisions are written that way, but in any event, yours is, it's broad.

[00:22:02] Speaker 00:
And you responsibly, over a decade, that's a little bit long, answered

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fully and you gave a full answer to all of the related questions.

[00:22:12] Speaker 00:
Can we judge you on your answers?

[00:22:14] Speaker 00:
You're not suggesting we can't, if you say something in your response that makes no sense, it fails review that we are entitled to undertake.

[00:22:26] Speaker 00:
Can we not comment on that?

[00:22:28] Speaker 06:
EPA's final denial is undoubtedly judicially reviewable.

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EPA does not dispute that.

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But to the extent that EPA simply

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explained its statutory interpretation, did not reconsider it, did not change it, did not withdraw it in any way.

[00:22:43] Speaker 00:
And when you say that, do you mean to say to the extent that we simply repeated the words, even though we may have changed them a little bit, that we used in 1980?

[00:22:51] Speaker 00:
You can't judge us?

[00:22:54] Speaker 00:
Is that what you mean to say?

[00:22:56] Speaker 00:
Because I think you did more than that.

[00:22:59] Speaker 06:
I don't think that EPA did.

[00:23:01] Speaker 06:
EPA looked at the new incidents and said that these

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This corrosivity characteristic is properly regulated under 42 UIC 6903, the subparagraph B, which allows EPA to consider the risks posed when improperly managed.

[00:23:16] Speaker 06:
And that interpretation and that corrosivity should be regulated under subparagraph B, that was set forth in the 1980 rulemaking.

[00:23:24] Speaker 06:
And the EPA did not revisit that.

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This case is more like the art-like case that we cited.

[00:23:30] Speaker 06:
It's the American Road and Transportation Association case where the court found that pre-opener

[00:23:35] Speaker 06:
but did not occur if the agency was simply restating its actuary interpretation and applying it.

[00:23:41] Speaker 00:
Well, that's the question.

[00:23:42] Speaker 00:
I mean, you know, it's close because there's some places I think the agency's trying to be responsible.

[00:23:47] Speaker 00:
You're stating a lot, and it looks like more than just restating.

[00:23:50] Speaker 06:
Right.

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And I think the ARCA case recognized the difficult position that the agency is putting.

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Because if it does a really comprehensive job and thoroughly responds to the comments, which is what it did here,

[00:24:04] Speaker 06:
It's subject to a challenge of re-opener.

[00:24:08] Speaker 06:
And if it doesn't do a good job, then it's subject to challenge under the APA for its treatment of the petition for rulemaking.

[00:24:15] Speaker 06:
I mean, I don't think that the fact that EPA did a good job and responded to all the comments is evidence of re-opener.

[00:24:25] Speaker 06:
It's simply evidence that EPA complied with its obligations to respond to the rulemaking petition.

[00:24:32] Speaker 06:
I see that I'm out of time.

[00:24:34] Speaker 06:
So I just wanted to underscore that EPA has a significant amount of discretion here when it comes to the technical determinations it made and its review of the scientific data.

[00:24:42] Speaker 06:
It also has a lot of deference when it comes to deciding whether rulemaking is appropriate.

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This isn't a situation where there's a gap.

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This is a situation where the regulation has functioned as intended.

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So unless the court has further questions, I would urge you to deny the petition for review seeking a rulemaking

[00:25:02] Speaker 02:
Thank you.

[00:25:04] Speaker 02:
This is Marge.

[00:25:06] Speaker 02:
OK, why don't you take two minutes.

[00:25:11] Speaker 03:
So first of all, I just wanted to make clear, in case I hadn't before, that the statutory interpretation of the 6903A and B that EPA made in 1980 was not the same as what they made in 2021.

[00:25:26] Speaker 03:
In 1980, they said A applies to

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Substances that are hazardous no matter how they're handled, B applies to substances that can be hazardous if they're improperly managed.

[00:25:41] Speaker 03:
And they even said in the rulemaking that B covers far more substances than A. It's much broader.

[00:25:50] Speaker 03:
When you come to 2021, they're using B to contract the area of regulation of hazardous substances saying,

[00:26:01] Speaker 03:
Because the word management was used in the statute, we can consider any waste management considerations we want, including ones outside of the statute, like our desire to allow hazardous waste, certain waste, such as the waste from waste treatment plants to be allowed.

[00:26:28] Speaker 03:
And therefore we're going to send it on that basis.

[00:26:30] Speaker 03:
Ms.

[00:26:30] Speaker 05:
Dinderstein, looking at the 1980 rule, it does say, and I can see this is under listing.

[00:26:37] Speaker 05:
It does say here that it is EPA's conviction that most wastes are hazardous only because they pose a substantial present or potential hazard to human health or the environment when improperly managed.

[00:26:49] Speaker 05:
And that's part B of the statutory definition of hazardous waste.

[00:26:53] Speaker 03:
Yes, that's correct.

[00:26:54] Speaker 03:
And we actually agree with the interpretation they gave in 1980.

[00:26:59] Speaker 03:
That's the correct interpretation.

[00:27:01] Speaker 03:
In 2021, they added to the hazardous waste definition, but we can exclude things because we think some of these ways are managed beneficially.

[00:27:13] Speaker 03:
That's not the same interpretation.

[00:27:15] Speaker 03:
They gave a new interpretation in 2021.

[00:27:19] Speaker 05:
But it does say, if I may, I'm sorry.

[00:27:21] Speaker 05:
It says EPA nevertheless recognizes that there are wastes which are so acutely hazardous that they can be considered to present a substantial hazard, whether improperly managed or not.

[00:27:30] Speaker 05:
I guess I'm not understanding what the difference is between what you think they said in 1980 and now, because it seems they were always focused on management.

[00:27:39] Speaker 03:
They said there are some wastes that come under A,

[00:27:43] Speaker 03:
that are hazardous no matter how they're managed.

[00:27:46] Speaker 03:
Then there are some ways that come under B, which is much broader, that become hazardous if they're improperly managed.

[00:27:53] Speaker 03:
So that's the correct interpretation of the statute.

[00:27:56] Speaker 03:
And so what's different now?

[00:27:57] Speaker 03:
But what's different now is that in 2021, they rely on B, which has to do with the improper management, to say that because

[00:28:07] Speaker 03:
It is about improper management.

[00:28:09] Speaker 03:
We can consider what we call management considerations, which is not even about improper management.

[00:28:16] Speaker 03:
It's about, we think that some of these ways are beneficial and shouldn't be regulated as hazardous.

[00:28:22] Speaker 03:
And therefore we're going to set the characteristic to exclude them.

[00:28:25] Speaker 05:
I see what you're saying.

[00:28:27] Speaker 05:
They relied on that in 1980 with respect to the live sludge.

[00:28:30] Speaker 03:
No, they did not.

[00:28:32] Speaker 03:
In 1980, what they said is,

[00:28:34] Speaker 03:
We want to exclude line sludge, but they didn't say it was because of their interpretation of A and B. They did not rely on that part of the statute or any statutory interpretation to do that.

[00:28:48] Speaker 03:
They just said, we think it would be too strict and we want to exclude this waste.

[00:28:53] Speaker 00:
Yeah, but on what authority were they doing it in 80?

[00:28:56] Speaker 03:
They didn't really have a good authority.

[00:28:58] Speaker 03:
That's part of the problem.

[00:29:01] Speaker 00:
You just said you agreed with their interpretation.

[00:29:03] Speaker 03:
I agree with their interpretation.

[00:29:04] Speaker 03:
of the statute, which wasn't even in the part of the regulation that had to do with the corrosivity standard.

[00:29:11] Speaker 03:
It was in another part of it.

[00:29:12] Speaker 03:
They interpreted that part of the statute, and we believe they interpreted it correctly.

[00:29:17] Speaker 03:
It had nothing to do with the corrosivity characteristic in the 1980 ruling.

[00:29:22] Speaker 03:
In 2021, they come back and say, we did this in 1980.

[00:29:26] Speaker 03:
They actually didn't.

[00:29:28] Speaker 03:
They came up with a new interpretation of immediate hazardous waste that allowed them

[00:29:33] Speaker 03:
deny the petition because they wanted to exclude certain waste from regulation.

[00:29:40] Speaker 03:
So I see that my time is out.

[00:29:45] Speaker 03:
I did just want to talk about the other statutory misinterpretations.

[00:29:50] Speaker 02:
If my colleagues don't have any questions, we'll get that from your brief.

[00:29:59] Speaker 03:
OK.

[00:30:00] Speaker 03:
So if there are no further questions, are there?

[00:30:03] Speaker 03:
Then thank you for your time.

[00:30:05] Speaker 03:
I appreciate it.

[00:30:07] Speaker 03:
Thank you.

[00:30:08] Speaker 03:
And just in conclusion, we contend that the condition of denial needs to be vacated because it is based on impermissible statutory interpretation.

[00:30:19] Speaker 03:
Thank you.