Before: Edwards, Chief Judge, Williams and Randolph, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Consolidated with Nos. 95-1251, 95-1253, 95-1255
On Petitions for Review of an Order of the Environmental Protection Agency
Opinion for the Court filed by Circuit Judge Williams.
This consolidated case concerns four classes of carbamate compounds-carbamates proper, carbamoyl oximes, thiocarbamates and dithiocarbamates (collectively "carbamates")-whose similar names reflect similarities in their chemical origins and structures. All are derivatives of carbamic acid. Carbamates and derivative products are used as pesticides, herbicides and fungicides; they are also used in various ways by the rubber, wood and textile industries. In the rulemaking giving rise to this lawsuit the Environmental Protection Agency listed many of these carbamate-based products, as well as waste streams generated in carbamate-based production processes, as hazardous wastes under the Resource Conservation and Recovery Act, 42 U.S.C. Section(s) 6901-6992k ("RCRA") (1994). Petitioners, the Dithiocarbamate Task Force (treated collectively with intervenor Uniroyal Chemical Co. as "DTF" or the "Task Force"), Zeneca Inc., and Troy Chemical Corp., are (or represent) manufacturers who make various carbamate-based products or use carbamates in their production processes. They challenge a portion of these listings as arbitrary and capricious.
Because we find that in promulgating some of the challenged rules EPA failed to meet the minimum standard required of it by the Administrative Procedure Act, see 5 U.S.C. Section(s) 706(2)(A) (1994), we vacate in part and affirm in part.
Statutory and Regulatory Authority: RCRA, enacted in 1976, directs the EPA to promulgate criteria for identifying and listing hazardous wastes, "taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." 42 U.S.C. Section(s) 6921(a). In 1980 EPA issued rules for identifying hazardous wastes, along with its first list of wastes subject to RCRA. *fn1 See Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45 Fed. Reg. 33,084-33,137 (May 19, 1980) (codified as amended at 40 CFR Part 261) (hereinafter, "Identification of Hazardous Waste"). Those rules remain in force today, with minor adjustments. The rules lay out three different routes to listing a substance as a hazardous waste, of which the third is of primary relevance here. Under it a waste can be listed as hazardous if it satisfies two conditions:  It contains any of the toxic constituents listed in appendix VIII [to 40 CFR Part 261] and  after considering the following factors [listed below], the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed.
Identification and Listing of Hazardous Waste, 40 CFR Section(s) 261.11(a)(3) (1995) (bracketed material added). The first step in the process, adding chemicals to appendix VIII, is to occur "only if [the chemicals] have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms." Id. In the second step, the Administrator is to consider the following factors:
(i) The nature of the toxicity presented by the constituent.
(ii) The concentration of the constituent in the waste.
(iii) The potential of the constituent or any toxic degradation product of the constituent to migrate from the waste into the environment under the types of improper management considered in paragraph (a)(3)(vii) of this section.
(iv) The persistence of the constituent or any toxic degradation product of the constituent.
(v) The potential for the constituent or any toxic degradation product of the constituent to degrade into non-harmful constituents and the rate of degradation.
(vi) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems.
(vii) The plausible types of improper management to which the waste could be subjected.
(viii) The quantities of the waste generated at individual generation sites or on a regional or national basis.
(ix) The nature and severity of the human health and environmental damage that has occurred as a result of the improper management of ...