ELR Citation: ELR 21415
No(s). s. 88-1835 et al (D.C. Cir. Jul 10, 1990)

The court holds that although the Environmental Protection Agency's (EPA's) decision to relist six wastes generated from metal smelting operations as hazardous was within its authority under the Resource Conservation and Recovery Act (RCRA), EPA did not adequately explain its decision. The court first holds that it has jurisdiction despite pending administrative petitions for reconsideration of EPA's decision, since EPA indicated that it would treat such administrative petitions as petitions for new rulemaking. The court next holds that EPA's interpretation of "discarded" under RCRA is reasonable and consistent with RCRA's purposes. Petitioners argue that three of the six wastes are not solid wastes because they are not "discarded" under RCRA, but rather are reused in mineral processing. These wastes include sludges from wastewater that are stored in surface impoundments and that may in the future be reclaimed. EPA reasonably concluded that these sludges are "discarded" because they are the product of wastewater and are stored in impoundments that threaten the health and environs of those living nearby. The court holds that EPA failed to adequately justify its relisting decision for some of the six wastes. EPA failed to adequately explain its decision to list K066, K064, K065, K090, and K091, but adequately explained its decision to list K088. The court holds that EPA satisfied the Administrative Procedure Act's (APA's) notice-and-comment requirements in issuing the rule. When a rule that has been subject to notice-and-comment procedures has been withdrawn in light of congressional action and later reinstated, the APA does not require an additional notice-and-comment period.

Counsel for Petitioners
J. Daniel Berry, John N. Hanson, Aaron H. Goldberg
Beveridge & Diamond
1350 I St. NW, Washington DC 20005
(202) 789-6000

John D. Fognani
Holland & Hart
555 17th St., Ste. 2900, P.O. Box 8749, Denver CO 80201
(303) 295-8000

Jeffrey O. Cerar
Squire, Sanders & Dempsey
1201 Pennsylvania Ave. NW, P.O. Box 407, Washington DC 20044
(202) 626-6781

Counsel for Respondent
Scott A. Schachter
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Stephen E. Silverman
U.S. Environmental Protection Agency
401 M St., SW, Washington DC 20460
(202) 475-8040

Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges.