United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2011 Decided June 8, 2012

No. 09-1038

AMERICAN PETROLEUM INSTITUTE,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

AMERICAN CHEMISTRY COUNCIL, ET AL.,

INTERVENORS

On Petition for Review of a Final Action of 

the United States Environmental Protection Agency

Thomas Sayre Llewellyn argued the cause for petitioner. 

With him on the briefs were Harry M. Ng, Michael R. See, and

Wayne J. D'Angelo.

Daniel R. Dertke, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for respondent. 

Vincent Atriano argued the cause for movant-intervenor

Gulf Chemical Metallurgical Corporation. With him on the

brief was Rebekah M. VanDrake. 
2

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,

Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: American Petroleum Institute

(API) petitions for review of a 2008 EPA regulation

deregulating many “hazardous secondary materials” under the

Resource Conservation and Recovery Act (RCRA), 42 U.S.C.

§§ 6901-6992k. Petitioner contends that EPA erred in not

including in the deregulation a category of hazardous secondary

material called spent refinery catalysts, which API’s members

generate during the petroleum refining process. After the parties

completed briefing, EPA issued a notice of proposed rulemaking

that, if made final, would significantly amend EPA’s 2008

decision. As a result, we deem this controversy unripe as a

prudential matter and order the case held in abeyance, subject to

regular reports on the status of the proposed rulemaking.

I.

A. Statutory and Regulatory Framework

Congress enacted RCRA in response to the “rising tide in

scrap, discarded, and waste materials.” Am. Mining Congress v.

EPA, 824 F.2d 1177, 1179 (D.C. Cir. 1987) (internal quotations

omitted). Primary in RCRA, Congress empowered the EPA to

regulate solid and hazardous waste. The statute defines “solid

waste” as including “any garbage, refuse, sludge from a waste

treatment plant, water supply treatment plant, or air pollution

control facility and other discarded material, including solid,

liquid, semisolid, or contained gaseous material resulting from

industrial, commercial, mining, and agricultural operations, and

from community activities . . . .” 42 U.S.C. § 6903(27). EPA’s

authority to regulate hazardous waste under Subtitle C of
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RCRA, 42 U.S.C. §§ 6921-6939f, extends to a subset of solid

waste as defined in the Act. Specifically,

 (5) The term “hazardous waste” means a solid waste, or

combination of solid wastes, which because of its quantity,

concentration, or physical, chemical, or infectious

characteristics may— 

 (A) cause, or significantly contribute to an increase

in mortality or an increase in serious irreversible, or

incapacitating reversible, illness; or

 (B) pose a substantial present or potential hazard to

human health or the environment when improperly

treated, stored, transported, or disposed of, or

otherwise managed.

Id. § 6903(5). In furtherance of its regulatory duties under the

Act, EPA has adopted regulations interpreting the statutory

definitions. The regulations define a solid waste as “any

discarded material” that is not excluded by variance granted

under other cited sections of the regulations. 40 C.F.R.

261.2(a)(1). The regulations define “discarded material” as “any

material” that is abandoned, recycled, “inherently waste-like,”

or a specifically identified military munition. 40 C.F.R.

§ 261.2(a)(2)(i). If a material fits any one of these descriptions,

it is “discarded material” and therefore “solid waste” (unless

EPA or Congress specifically excludes the material from that

definition), and EPA has authority to regulate it under RCRA.

B. The Regulated Materials: Spent Petroleum Refinery

Catalysts

The materials at issue in this case are catalysts used in the

petroleum refining process called hydrotreating and
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hydrorefining catalysts. These catalysts, generally nickel,

cobalt, and/or molybdenum on an alumina base, remove sulfur

and nitrogen compounds from petroleum by “cracking” the

hydrocarbons that make up petroleum into smaller molecules

under high-temperature, high-pressure conditions. Over time,

these catalysts degrade as carbon deposits or metals—in

particular, vanadium—attach to them. Once fully degraded, or

“spent,” the catalysts are usually sent to a third party, which can

either regenerate them for reuse or extract the valuable metals

that have attached to the catalysts. 

While useful, these catalysts carry risks. In particular, they

have pyrophoric properties, i.e., a tendency to spontaneously

heat and ignite in air, causing fires and release of toxic

chemicals. EPA therefore proposed to list hydrotreating and

hydrorefining catalysts as hazardous waste in 1995. Citing the

need to encourage recycling of these catalysts, API—an

association whose members own or operate refineries that

generate spent refinery catalysts—urged EPA in comments

responding to this proposal to list the catalysts only

conditionally so that spent catalysts destined for recycling would

not be listed as hazardous waste. EPA declined, listing the

catalysts unconditionally as hazardous waste in a final rule in

1998. Since that time, all spent catalysts, whether destined for

reclamation or not, have been classified as hazardous waste

subject to stringent regulations.

C. The 2008 Rule

In 2007, EPA proposed a new rule that would change the

classification of “hazardous secondary materials,” which include

recycled or reclaimed spent refinery catalysts. Reasoning that

materials recycled under specified circumstances are not

“discarded” and are therefore not “solid waste,” EPA proposed

to exclude hazardous secondary materials from the definition of
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solid waste in two situations. First, hazardous secondary

materials legitimately reclaimed under the control of their

generator would be excluded from “solid waste” because EPA

determined that the generator under those circumstances is

treating such material as a valuable commodity rather than as a

waste (the “generator-controlled exclusion”). 72 Fed. Reg.

14,172, 14,184-88. Second, hazardous secondary materials

would be excluded from “solid waste” if the generator

transferred the materials to a third party for legitimate

reclamation under specific conditions including recordkeeping,

reasonable efforts on the part of the generator to ensure

legitimate reclamation by the reclaimer, financial assurances by

the reclaimer, and, importantly, containment of the materials. 

72 Fed. Reg. at 14,188-97. This “transfer-based exclusion” was

likewise based on the idea that third-party reclamation properly

carried out was not consistent with the concept of “discard.” 

The proposed rule would have excluded spent refinery

catalysts from the definition of solid waste if they were sent to

a third party for reclamation under the specific conditions set out

in the proposed rule. Exclusion from “solid waste” would mean

exclusion from costly Subtitle C regulation as hazardous waste. 

EPA issued a final rule in 2008 adopting generator-controlled

and transfer-based exclusions from the definition of solid waste

(the “2008 Rule”). But the final rule specifically omits spent

refinery catalysts from those exclusions. EPA explained that it

chose to make the catalysts ineligible for the deregulatory

exclusions because of their pyrophoric properties. According to

EPA, it would instead address the catalysts in a separate

proposed rulemaking after seeking and considering “comment

on specific conditions to address the pyrophoric properties of

these hazardous secondary materials, particularly during

transportation and storage prior to reclamation, in order for the

Agency to determine that they are not being discarded.” 73 Fed.

Reg. 64,668, 64,714 (October 30, 2008). That proposed
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rulemaking would either finalize a spent-catalyst-specific

exclusion or make the spent catalysts eligible for the general

exclusions. Id.

D. Procedural History and a Recent Proposed

Rulemaking

API filed a petition for review of the 2008 Rule on January

27, 2009. The Sierra Club also petitioned for review of the 2008

Rule. On September 10, 2010, EPA entered into a settlement

agreement with the Sierra Club. EPA agreed to propose, by

June 30, 2011, a new rule addressing certain issues raised by the

Sierra Club and to take final action on that rule by December 31,

2012. 

In July 2011, soon after the close of briefing in this case,

EPA published a new notice of proposed rulemaking in

accordance with the settlement agreement to address the issues

raised by the Sierra Club. In the proposed rule, EPA effectively

revised the 2008 Rule in two relevant ways. First, spent

hydrotreating and hydrorefining catalysts would now also be

eligible for the generator-controlled exclusion from the

definition of solid waste. 76 Fed. Reg. 44,094, 44,152 (July 22,

2011). Second, EPA proposed to eliminate altogether the

transfer-based exclusion for hazardous secondary materials;

those materials would again be considered solid waste—and

thus hazardous waste—even if transferred to third parties for

recycling and would be subject to an alternative Subtitle C

standard. 76 Fed. Reg. at 44,108-10, 44,151. If this proposed

rule were to become final without revision, then, spent refinery

catalysts would be treated the same as other hazardous

secondary materials: eligible for the generator-controlled

exclusion from the definition of solid waste, but not eligible for

a transfer-based exclusion, which would cease to exist.
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Because EPA published the 2011 proposed rule after the

parties had submitted their merits briefs, we asked the parties to

address at oral argument the impact of that rule on justiciability. 

We now conclude that API’s petition is not ripe for review.

II.

The ripeness doctrine generally deals with when a federal

court can or should decide a case. Part of the doctrine is

subsumed into the Article III requirement of standing, which

requires a petitioner to allege inter alia an injury-in-fact that is

“imminent” or “certainly impending.” See Nat’l Treasury Emps.

Union v. United States, 101 F.3d 1423, 1427-28 (D.C. Cir.

1996). Even if a case is “constitutionally ripe,” though, there

may also be “prudential reasons for refusing to exercise

jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior,

538 U.S. 803, 808 (2003). In the context of agency decision

making, letting the administrative process run its course before

binding parties to a judicial decision prevents courts from

“entangling themselves in abstract disagreements over

administrative policies, and . . . protect[s] the agencies from

judicial interference” in an ongoing decision-making process. 

See Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). 

Postponing review can also conserve judicial resources, and it

“comports with our theoretical role as the governmental branch

of last resort.” Nat’l Treasury Emps. Union, 101 F.3d at 1431.

For instance, declining jurisdiction over a dispute while

there is still time for the challenging party to “convince the

agency to alter a tentative position” provides the agency “an

opportunity to correct its own mistakes and to apply its

expertise,” potentially eliminating the need for (and costs of)

judicial review. Pub. Citizen Health Research Grp. v. FDA, 740

F.2d 21, 30-31 (D.C. Cir. 1984) (citation and internal quotation

mark omitted). Even if the challenger fails to persuade the
8

agency, permitting the administrative process to reach its end

can at least solidify or simplify the factual context and narrow

the legal issues at play, allowing for more intelligent resolution

of any remaining claims and avoiding inefficient and

unnecessary “piecemeal review.” Id. at 30 (internal quotation

marks omitted). Put simply, the doctrine of prudential ripeness

ensures that Article III courts make decisions only when they

have to, and then, only once. See Devia v. NRC, 492 F.3d 421,

424 (D.C. Cir. 2007); Pub. Citizen Health Research Grp., 740

F.2d at 30-31.

In assessing the prudential ripeness of a case, we focus on

two aspects: the “fitness of the issues for judicial decision” and

the extent to which withholding a decision will cause “hardship

to the parties.” Abbott Labs., 387 U.S. at 149. We address each

aspect in turn.

A.

The fitness requirement is primarily meant to protect “the

agency’s interest in crystallizing its policy before that policy is

subjected to judicial review and the court's interests in avoiding

unnecessary adjudication and in deciding issues in a concrete

setting.” Wyo. Outdoor Council v. U. S. Forest Serv., 165 F.3d

43, 49 (D.C. Cir. 1999) (internal quotation mark omitted). 

Among other things, then, the fitness of an issue “depends on

whether it is purely legal, whether consideration of the issue

would benefit from a more concrete setting, and whether the

agency’s action is sufficiently final.” Atl. States Legal Found.

v. EPA, 325 F.3d 281, 284 (2003) (internal quotation marks

omitted). Courts decline to review “tentative” agency positions

because doing so “severely compromises the interests” the

ripeness doctrine protects: “The agency is denied full

opportunity to apply its expertise and to correct errors or modify

positions in the course of a proceeding, the integrity of the
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administrative process is threatened by piecemeal review of the

substantive underpinnings of a rule, and judicial economy is

disserved because judicial review might prove unnecessary if

persons seeking such review are able to convince the agency to

alter a tentative position.” See Pub. Citizen Health Research,

740 F.2d at 31.

We would risk causing all of these problems by reviewing

API’s petition for review of the 2008 Rule at this time. At

bottom, API argues that the spent refinery catalysts its members

generate and send to reclaimers should be eligible for the 2008

Rule’s transfer-based exclusion from the definition of solid

waste like other hazardous secondary materials the exclusion

covers. EPA responds that the pyrophoric properties of the

catalysts warrant further consideration to make sure they will

not be discarded during transfer. In light of the July 2011

proposed rule, though, “[i]f we do not decide [the issue] now,

we may never need to.” Nat’l Treasury Emps. Union, 101 F.3d

at 1431. The proposed rule would wholly eliminate the very

transfer-based exclusion of which API’s members wish to take

advantage. EPA’s position on the advisability of a transferbased exclusion at all is thus plainly a tentative one; it is

proposing to eliminate the same exclusion it just created in the

2008 Rule. Also important, the new proposed rulemaking gives

API a chance to convince EPA to change its mind—it provides

a relevant context in which API may persuade EPA that it would

be a mistake not to provide some sort of transfer-based

exclusion, either for all hazardous secondary materials or at least

for spent refinery catalysts. If API succeeds, this case goes

away without the need for judicial review.

If the July 2011 proposed rule is enacted as proposed, it will

narrow the legal issues involved in this dispute and provide a

more final and concrete setting for deciding any issues left on

the table. First, because the proposed rule would lump spent
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refinery catalysts in with the rest of the hazardous secondary

materials it covers, even API concedes that its current objection

to the disparate treatment of spent refinery catalysts (and to

EPA’s alleged failure to allow for comment on its decision to

treat the catalysts differently) would disappear along with the

disparate treatment itself. It would hardly be sound stewardship

of judicial resources to decide this case now on the basis of the

disparate-treatment argument given that an already published

proposed rule, if enacted, would dispense with the need for such

an opinion in a matter of months.

Second, to the extent API and EPA dispute whether some

sort of transfer-based exclusion for hazardous secondary

materials is necessary to comport with the concept of “discard,”

that issue also is best addressed once EPA finally decides

whether to eliminate the transfer-based exclusion it adopted in

the 2008 Rule. Indeed, in the only rule before us now, the 2008

Rule, EPA actually adopted a transfer-based exclusion (and then

“deferred” until a later date the question whether spent catalysts

should be eligible for that exclusion or a different one). In this

context, it makes little sense to nevertheless pigeonhole EPA

into rebutting API by arguing that a transfer-based exclusion is

not required. If we withhold review of this petition as

prudentially unripe, we need not address the issue in its current

indeterminate form. In the ongoing rulemaking, EPA could

change its mind and keep the transfer-based exclusion, in which

case the issue goes away; or, if EPA stays the course and

abolishes the transfer-based exclusion, the dispute will become

concrete and straightforward. API can then argue that a

transfer-based exclusion is required, and EPA can

respond—based on whatever explanation it provides in the

record of the then-final rule—that treating hazardous secondary

materials sent for reclamation as “discarded” is a permissible

interpretation of its authority to regulate “solid waste” under

RCRA. Either way, waiting to resolve this case allows EPA to
11

apply its expertise and correct any errors, preserves the integrity

of the administrative process, and prevents piecemeal and

unnecessary judicial review.

All of this is not to say an agency can stave off judicial

review of a challenged rule simply by initiating a new proposed

rulemaking that would amend the rule in a significant way. If

that were true, a savvy agency could perpetually dodge review. 

Cf. Am. Petroleum Institute, 906 F.2d at 739-40 (“If the

possibility of unforeseen amendments were sufficient to render

an otherwise fit challenge unripe, review could be deferred

indefinitely.”). 

That risk of agency abuse is not present here. To begin

with, the 2011 proposed rule is clearly not some nonsubstantive, thinly veiled attempt to evade review; it is a

complete reversal of course on EPA’s part that, if adopted,

would necessitate substantively different legal analysis and

would likely moot the analysis we could undertake if deciding

the case now. Moreover, the happening or timing of the future

event we are awaiting to ripen (or solve) this dispute—final

action on the 2011 proposed rule—is not within the discretion

of or controlled by the agency as would usually be the case. 

EPA did not issue a notice of proposed rulemaking on its own

volition or set its own deadline for final action. Rather, EPA

agreed to issue the 2011 proposed rule as part of its settlement

with the Sierra Club, which had sought repeal of the 2008 Rule

based on allegations that it was not sufficiently protective of

human health and the environment. That settlement requires

EPA to take final action concerning the proposed rulemaking by

December 31, 2012. This definite end date to the delay we

would effectively impose by deeming this case unripe further

alleviates any concern that EPA is using a new rulemaking to

elude review.
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Also, when we consider the fitness of an issue for review,

we ask whether it is “purely legal.” Atl. States Legal Found.,

325 F.3d at 284. This issue does involve the interpretation of a

statute; that statute is entrusted for its administration to EPA. 

Under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837

(1984), we will afford the agency’s interpretation significant

deference. It is more consistent with the conservation of judicial

resources to make that deference-bound review after the agency

has finalized its application of the relevant statutory text.

Lastly, to protect against the unlikely and the unpredictable,

we can hold the case in abeyance pending resolution of the

proposed rulemaking, subject to regular reports from EPA on its

status. See, e.g., Devia, 492 F.3d at 426; Stratford v. FAA, 285

F.3d 84 (D.C. Cir. 2002), reh’g denied, 292 F.3d 251 (D.C. Cir.

2002); Blumenthal v. FERC, 2003 WL 21803316 (D.C. Cir.

2003). If the rulemaking takes an unforeseen turn, we can

reassess whether the dispute has ripened at that time.

B.

To outweigh these “institutional interests in the deferral of

review,” any hardship caused by that deferral must be

“immediate and significant.” Devia, 492 F.3d at 427 (internal

quotation marks omitted). Considerations of hardship that might

result from delaying review “will rarely overcome the finality

and fitness problems inherent in attempts to review tentative

positions.” Pub. Citizen Health Research, 740 F.2d at 31. So

here.

API asserts that deferring review of the 2008 Rule would

cause hardship by increasing the time during which its members

are precluded from taking advantage of cost savings that would

come from deregulation of the spent refinery catalysts they

generate and send for reclamation. API suggests that if the
13

catalysts were no longer considered hazardous waste,

transporting the catalysts to reclaimers would be less expensive

and market prices for recycling them would decrease because

facilities without hazardous-waste permits could enter the

market. 

But even assuming API’s members would eventually realize

cost savings from deregulation of the catalysts, it is not at all

clear that they could take advantage now if we decided this

petition in their favor. New federal requirements under RCRA

do not take effect in any State that manages its own RCRA

program until that State adopts those requirements. States are

only required to adopt new federal requirements that are more

stringent than existing requirements. If EPA takes action that is

deregulatory in nature, States may, but are not required to, adopt

the resulting less stringent rule. Because the 2008 Rule’s

transfer-based exclusion is deregulatory, it only goes into effect

in those States that choose to adopt it. So far, only four States

have done so, and the exclusion is effective in two other States

where EPA administers the hazardous waste program. Refinery

catalysts are apparently generated in only three of these States,

and even as to those States, API has not shown that any of the

three States have reclamation facilities where the spent refinery

catalysts could be sent at a lower cost for its members. While

we do not discount the possibility of some financial hardship,

API has not shown such a burden as to warrant a potentially

improvident decision of an otherwise unripe issue by this court.

III.

For the above reasons, we hold that API’s petition is not

ripe for review. We will hold this case in abeyance subject to

status reports in accordance with the terms of the order

accompanying this opinion.