United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2014 Decided June 27, 2014. 

No. 98-1379 

NATURAL RESOURCES DEFENSE COUNCIL AND SIERRA CLUB, 

PETITIONERS

v. 

ENVIRONMENTAL PROTECTION AGENCY AND GINA 

MCCARTHY, 

RESPONDENTS

AMERICAN CHEMISTRY COUNCIL, 

INTERVENOR

Consolidated with 98-1429, 98-1431 

On Petitions for Review of Final Action of the 

 United States Environmental Protection Agency 

James S. Pew argued the cause for the petitioners. 

Khushi K. Desai and David R. Case were on brief. 

Norman L. Rave, Jr., Attorney, United States Department 

of Justice, argued the cause for the respondents. Robert G. 

Dreher, Acting Assistant Attorney General, and Steven 

Silverman and Alan H. Carpien, Attorneys, United States 

Environmental Protection Agency, were on brief. Cynthia J. 
2 

Morris, and Christopher S. Vaden, Attorneys, United States 

Department of Justice, and Lois J. Schiffer, Attorney, National 

Capital Planning Commission, entered appearances. 

Michael W. Steinberg argued the cause for the intervenor. 

David M. Kerr and Leslie A. Hulse were on brief. 

Thomas Sayre Llewellyn, Harry M. Ng and Deanne M. 

Ottaviano were on brief for amici curiae American Petroleum 

Institute et al. in support of the respondents. 

Before: HENDERSON and MILLETT, Circuit Judges, and 

SENTELLE, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge HENDERSON. 

KAREN LECRAFT HENDERSON, Circuit Judge: Petitioners 

Natural Resources Defense Council, Sierra Club and 

Environmental Technology Council (collectively, Petitioners) 

seek review of a portion of a 1998 rule of the Environmental 

Protection Agency (EPA) creating a “Comparable Fuels 

Exclusion” from regulation under section 3004(q) of the 

Resource Conservation and Recovery Act of 1976 (RCRA), 42 

U.S.C. § 6924(q). See Hazardous Waste Combustors; 

Revised Standards, 63 Fed. Reg. 33,782, 33,783-801, 

33,823-35 (June 19, 1998) (1998 Rule) (codified at 40 C.F.R. 

§§ 261.4(a)(16) and 261.38). Section 6924(q) directs EPA to 

establish standards applicable to all facilities that produce, 

burn for energy recovery or distribute/market fuels derived 

from specific listed hazardous wastes. The Comparable Fuels 

Exclusion exempts from section 6924(q)’s mandate all fuels 

deemed comparable to non-hazardous-waste-derived fossil 

fuels because they satisfy EPA’s specifications. See 40 

C.F.R. §§ 261.4(a)(16), 261.38. We conclude the 

Comparable Fuels Exclusion is inconsistent with the plain 

language of section 6924(q), which requires that EPA establish 

standards applicable to all fuel derived from hazardous waste. 
3 

Accordingly, we grant the petitions for review filed by the 

Natural Resources Defense Council (NRDC) and the Sierra 

Club (collectively, Environmental Petitioners) and vacate the 

Comparable Fuels Exclusion. 

I. 

RCRA, codified at 42 U.S.C. §§ 6901 et seq., is “a 

comprehensive environmental statute under which EPA is 

granted authority to regulate solid and hazardous wastes.” 

Am. Mining Cong. v. EPA (AMC I), 824 F.2d 1177, 1179 (D.C. 

Cir. 1987). Subtitle C of RCRA, 42 U.S.C. §§ 6921-39g, 

governs “Hazardous Waste Management” and “establishes a 

‘cradle to grave’ federal regulatory system for the treatment, 

storage, and disposal of hazardous wastes.” Cement Kiln 

Recycling Coal. v. EPA, 493 F.3d 207, 211 (D.C. Cir. 2007) 

(quotation marks and citation omitted). RCRA defines 

“hazardous waste” as “a solid waste, or combination of solid 

wastes” which, because of its characteristics, may “cause, or 

significantly contribute to an increase in mortality or . . . 

serious . . . illness [or] pose a substantial present or potential 

hazard to human health or the environment when improperly 

. . . managed.” 42 U.S.C. § 6903(5). A “solid waste,” in 

turn, is defined as “any garbage, refuse, sludge from a waste 

treatment plant, water supply treatment plant, or air pollution 

control facility and other discarded material.” Id. § 6903(27) 

(emphasis added). Section 6924 provides generally that EPA 

“shall promulgate regulations establishing such performance 

standards, applicable to owners and operators of facilities for 

the treatment, storage, or disposal of hazardous waste 

identified or listed under this subchapter, as may be necessary 

to protect human health and the environment.” Id. § 6924(a). 

Until 1985, EPA regulations expressly exempted from 

section 6924’s hazardous waste standards “material . . . being 

burned as a fuel for the purpose of recovering usable energy,”
4 

under the theory that such material was not “discarded,” 40 

C.F.R. § 261.2(c)(2) (1984), and therefore not “solid waste,” as 

defined in 42 U.S.C. § 6903(27), or, consequently, “hazardous 

waste,” which is defined in section 6903(5) “as a subset of 

‘solid waste,’ ” Horsehead Res. Dev. Co. v. Browner, 16 F.3d 

1246, 1263 (D.C. Cir. 1994); see AMC I, 824 F.2d at 1189 

(noting regulations existing in November 1984 had “provided 

that unused commercial chemical products were solid wastes 

only when ‘discarded’ [and] ‘[d]iscarded’ was at that time 

defined as abandoned (and not recycled) by being disposed, 

burned, or incinerated (but not burned for energy recovery)” 

(citing 40 C.F.R. §§ 261.33, 261.2(c) (1983))). In 1984, the 

Congress attempted to eliminate EPA’s regulatory energy 

recovery exemption when it enacted section 6924(q) as part of 

“The Hazardous and Solid Waste Amendments of 1984,” Pub. 

L. No., 98-616, § 204(b)(1), 98 Stat. 3221, 3236-37 (Nov. 8, 

1984). See AMC I, 824 F.2d at 1189 (noting Congress 

“apparently added [section 6924(q)(1)] to override” 40 C.F.R. 

§ 261.33 (1983)); Horsehead Res. Dev. Co., 16 F.3d at 1253 

(“Exempting facilities that burned hazardous waste for energy 

recovery from Subtitle C’s requirements created a regulatory 

‘loophole’ by means of which over half of the hazardous waste 

generated in the United States came to be burned in [boilers 

and industrial furnaces] not subject to RCRA. Congress 

closed this loophole by enacting RCRA section 3004(q)[, 

which] set a deadline of November 8, 1986 for the EPA to 

promulgate regulations governing the burning of hazardous 

waste for energy recovery.” (citation omitted)). 

Section 6924(q) governs “[h]azardous waste used as fuel” 

and mandates that EPA regulate entities that produce, burn for 

energy recovery or distribute/market hazardous-waste-derived 

fuel. In particular, it provides that EPA “shall promulgate 

regulations establishing . . . as may be necessary to protect 

human health and the environment”: “(A) standards applicable 

to the owners and operators of facilities which produce a fuel 
5 

. . . from any hazardous waste identified or listed under [42 

U.S.C. § 6921], . . . (B) standards applicable to the owners and 

operators of facilities which burn, for purposes of energy 

recovery, any [such] fuel . . . or any fuel which otherwise 

contains any hazardous waste . . . and (C) standards applicable 

to any person who distributes or markets any [such] fuel . . . or 

any fuel which otherwise contains any hazardous waste.” 42 

U.S.C. § 6924(q)(1)(A)-(C).1 In January 1985, pursuant to 

 1

Section 6924(q)(1) provides in full: 

(q) Hazardous waste used as fuel 

(1) Not later than two years after November 8, 1984, 

and after notice and opportunity for public hearing, 

the Administrator shall promulgate regulations 

establishing such— 

(A) standards applicable to the owners and 

operators of facilities which produce a fuel— 

(i) from any hazardous waste identified or 

listed under section 6921 of this title, or 

(ii) from any hazardous waste identified or 

listed under section 6921 of this title and 

any other material; 

(B) standards applicable to the owners and 

operators of facilities which burn, for purposes 

of energy recovery, any fuel produced as 

provided in subparagraph (A) or any fuel which 

otherwise contains any hazardous waste 

identified or listed under section 6921 of this 

title; and 

(C) standards applicable to any person who 

distributes or markets any fuel which is produced 

as provided in subparagraph (A) or any fuel 

which otherwise contains any hazardous waste 

identified or listed under section 6921 of this 

title; 

as may be necessary to protect human health and the 

environment. Such standards may include any of the 
6 

section 6924(q), EPA eliminated the energy recovery 

exclusion. See Hazardous Waste Management System; 

Definition of Solid Waste, 50 Fed. Reg. 614, 664 (Jan. 4, 1985) 

(amending definition of “solid waste” to provide that 

“[m]aterials are solid wastes if they are recycled” by, inter alia, 

“[b]urning for energy recovery”). 

 EPA proposed the Comparable Fuels Exclusion in 1996. 

See Revised Standards for Hazardous Waste Combustors, 61 

Fed. Reg. 17,358, 17,529-30 (Apr. 19, 1996). Following 

notice and comment, the final version was published in the 

1998 Rule. See 63 Fed. Reg. at 33,823-29. The Comparable 

Fuels Exclusion exempts from the section 6924(q) hazardous 

waste fuel standard requirement all “comparable fuels,” which 

are “fuels which are produced from a hazardous waste, but 

which are comparable to some currently used fossil fuels.”2

 

Id. at 33,782; see id. at 33,783-801. To be comparable, the 

fuel must “meet specification levels comparable to fossil fuels 

for concentrations of hazardous constituents and for physical 

properties that affect burning,” such as heating value and 

 

requirements set forth in paragraphs (1) through (7) of 

subsection (a) of this section as may be appropriate. 

Nothing in this subsection shall be construed to affect 

or impair the provisions of section 6921(b)(3) of this 

title. For purposes of this subsection, the term 

“hazardous waste listed under section 6921 of this 

title” includes any commercial chemical product 

which is listed under section 6921 of this title and 

which, in lieu of its original intended use, is (i) 

produced for use as (or as a component of) a fuel, (ii) 

distributed for use as a fuel, or (iii) burned as a fuel. 

2

The Comparable Fuels Exclusion includes “an exclusion for a 

particular type of hazardous waste-derived fuel, namely a type of 

synthesis gas (‘syngas’) meeting particular specifications.” 63 Fed. 

Reg. at 33,785. 
7 

viscosity. 63 Fed. Reg. at 33,783; see 40 C.F.R. 

§§ 261.4(a)(16) (“The following materials are not solid wastes 

for the purpose of this part: . . . [c]omparable fuels or 

comparable syngas fuels that meet the requirements of 

§ 261.38.”), 261.38 (setting out “[s]pecifications for excluded 

fuels” as well as other conditions and limitations). The 

Comparable Fuels Exclusion also imposes notification 

requirements, including (1) that the generator of a comparable 

fuel provide to the appropriate State or to EPA notice of, inter 

alia, the hazardous waste content and the location where it will 

be burned and (2) that the burner of such fuel publish in a local 

newspaper notice of the fact, location and estimated extent of 

the burning. 63 Fed. Reg. at 33,784, 33,797-98 (codified at 40 

C.F.R. § 261.38(b)(2)).3

 

EPA’s stated rationale for the Comparable Fuels 

Exclusion was that EPA “has discretion to classify . . . as a fuel 

product, not as a waste” a “hazardous waste-derived fuel [that] 

is comparable to a fossil fuel in terms of hazardous and other 

key constituents and has a heating value indicative of a fuel.” 

Id. at 33,783. Under this rationale, EPA explained, it “can 

reasonably determine that a material which is a legitimate fuel 

and which contains hazardous constituents at levels 

comparable to fossil fuels is not being ‘discarded’ within the 

meaning of RCRA section 1004(27) [42 U.S.C. § 6903(27) 

(defining “solid waste)”], and therefore is not “waste.” 63 

Fed. Reg. at 33,783. Such a determination, EPA continued, 

“promotes RCRA’s resource recovery goals without creating 

 3 The Comparable Fuels Exclusion imposes additional 

conditions “to assure that burning of comparable fuels will not 

become part of the waste management problem”—notably, it limits 

comparable fuels combustion to industrial furnaces, industrial and 

utility boilers and hazardous waste incinerators and it prohibits 

meeting specification limits through dilution. 63 Fed. Reg. at 

33,784. 
8 

any risk greater than those posed by the commonly used 

commercial fuels.” Id. In setting its comparable fuel 

specifications, EPA used a “benchmark” approach “based on 

the level of hazardous and other constituents normally found in 

fossil fuels” so that “concentrations of hazardous constituents 

in the comparable fuel could be no greater than the 

concentration of hazardous constituents normally occurring in 

commercial fossil fuels.” Id. at 33,784. Under the 

benchmark specifications, EPA stated, it “reasonably 

expect[ed]—based on the methodology used to establish the 

specification—that the comparable fuel will pose no greater 

risk when burned than a fossil fuel and concomitant energy 

recovery benefits will be realized from reusing the waste to 

displace fossil fuels.” Id. EPA further explained that it 

“conclude[d] it has discretion in exercising jurisdiction over 

hazardous waste-derived fuels that are essentially the same as 

fossil fuel, since there would likely not be environmental 

benefits from regulating those hazardous waste-derived fuels 

(i.e., burners would likely just choose to burn fossil fuels).” 

Id. In fact, EPA asserted, many of the commercial fossil fuels 

already being burned “could be less ‘clean’ than the 

comparable fuels, so that substitution of some commercial 

fuels could be a net deterrent.” Id. In sum, EPA “expect[ed] 

that the comparable fuel would pose no greater risk when 

burned than a fossil fuel and would at the same time be 

physically comparable to a fossil fuel, leading to the 

conclusion that EPA may classify these materials as products, 

not wastes.” Id. 

 Multiple petitioners—representing both environmental 

and industry groups—filed timely petitions for review of the 

Comparable Fuels Exclusion, which petitions were held in 

abeyance pending, initially, settlement negotiations and, 

subsequently, an administrative appeal of the related challenge 

to EPA’s “Gasification Exclusion Rule” in Sierra Club v. EPA, 

No. 08-1144 (D.C. Cir. June 27, 2014). The Comparable 
9 

Fuels Exclusion case was removed from abeyance in March 

2013. 

II. 

 We have subject matter jurisdiction to review the petitions 

under 42 U.S.C. § 6976(a)(1), “which gives this court 

exclusive jurisdiction over ‘petitions for review of action of the 

EPA in promulgating any regulation, or requirement under 

RCRA.’ ” Cement Kiln Recycling Coal. v. EPA, 493 F.3d 

207, 214 (D.C. Cir. 2007) (brackets omitted). Before 

reaching the merits, we consider the Petitioners’ standing vel 

non under Article III of the United States Constitution. See

Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006) 

(“The ‘first and fundamental question’ that we are ‘bound to 

ask and answer’ is whether the court has jurisdiction to decide 

the case.” (quoting Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 94 (1998))). 

A. Standing 

 “Because Article III limits the constitutional role of the 

federal judiciary to resolving cases and controversies, a 

showing of standing ‘is an essential and unchanging’ predicate 

to any exercise of our jurisdiction.” Fla. Audubon Soc’y v. 

Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) 

(citation omitted)). Moreover, “the party invoking the court’s 

jurisdiction . . . bears the burden of demonstrating that it 

satisfies the ‘irreducible constitutional minimum’ of standing: 

(1) an ‘injury in fact’ that is ‘concrete and particularized’ as 

well as ‘actual or imminent’; (2) a ‘causal connection’ between 

the injury and the challenged conduct; and (3) a likelihood, as 

opposed to mere speculation, ‘that the injury will be redressed 

by a favorable decision.’ ” Ark Initiative v. Tidwell, 749 F.3d 

1071, 1075 (D.C. Cir. 2014) (quoting Lujan, 504 U.S. at 560–

61 (1992) (quotation marks and brackets omitted)). The 
10 

Environmental Petitioners claim representational standing on 

behalf of their members. Accordingly, each must demonstrate 

that “[1] its members would otherwise have standing to sue in 

their own right, [2] the interests it seeks to protect are germane 

to the organization’s purpose, and [3] neither the claim asserted 

nor the relief requested requires the participation of individual 

members.” Defenders of Wildlife v. Perciasepe, 714 F.3d 

1317, 1323 (D.C. Cir. 2013). 

The Environmental Petitioners have met their burden of 

demonstrating standing on behalf of their members. They 

have submitted declarations of long-time members who spend 

time near facilities which, as a result of the Comparable Fuels 

Exclusion, now burn comparable fuels, and who are concerned 

about the emissions’ effects on their health and, in some cases, 

spend less time outdoors on that account. See, e.g., Br. for 

Pet’rs, Decls. Add. 6 (declaration of NRDC member Doris 

Falkenheiner), 12-14 (Sierra Club member Glen Besa), 22-23 

(Sierra Club member William Fontenot), 34-35 (Sierra Club 

member Kristina Moazed). The declarations’ averments 

satisfy the Environmental Petitioners’ evidentiary burdens to 

demonstrate injury, causation and redressability. See Ass’n of 

Battery Recyclers v. EPA, 716 F.3d 667, 672 (D.C. Cir. 2013) 

(finding association had Article III standing based on 

members’ averments that “they live or work in close proximity 

to [challenged] smelters and have reduced their time outdoors 

in response to concerns about pollution—precisely the kinds of 

harms the Supreme Court has deemed sufficient to show injury 

in fact”). 

 Intervenor American Chemistry Council challenges the 

Environmental Petitioners’ standing, asserting they did not 

demonstrate that as of the time the petitions were filed, there 

was a “substantial probability” that a facility located near one 

of their members would burn comparable fuels, thereby 

causing the alleged injury—largely because they do not aver 
11 

any facility had then provided notice of such burning—either 

to the applicable RCRA director or through newspaper 

publication—prerequisites under the 1998 Rule to burning 

comparable fuels.4 See Br. for Intervenor 14-15; 40 C.F.R. 

§ 261.38(b)(2); see also Chamber of Commerce v. EPA, 642 

F.3d 192, 199-200 (D.C. Cir. 2011) (petitioner bears burden to 

“show a ‘substantial probability’ that it has been or will be 

injured, that the defendant caused its injury, and that the court 

could redress that injury”; “standing is assessed as of the time a 

suit commences” (brackets, capitalization and quotation marks 

omitted)). We disagree. 

It is “well-established . . . that standing will lie where ‘a 

plaintiff demonstrates that the challenged agency action 

authorizes the conduct that allegedly caused the plaintiff’s 

injuries, if that conduct would allegedly be illegal otherwise.’ ” 

Am. Trucking Ass’n v. Fed. Motor Carrier Safety Admin., 724 

F.3d 243, 248 (D.C. Cir. 2013) (quoting Animal Legal Def. 

Fund, Inc. v. Glickman, 154 F.3d 426, 440 (D.C. Cir. 1998) (en 

banc)). This is precisely the case here. Once EPA 

promulgated the Comparable Fuels Exclusion, it was “ ‘a 

hardly-speculative exercise in naked capitalism’ ” to predict 

that facilities would take advantage of it to burn 

hazardous-waste-derived fuels rather than more expensive 

fossil fuels. Id. (inferring that “motor carriers would respond 

to the hours-increasing provisions by requiring their drivers to 

use them and work longer days” (quoting Abigail Alliance for 

Better Access to Developmental Drugs v. Eschenbach, 469 

F.3d 129, 135 (D.C. Cir. 2006))). And the Intervenor does not 

dispute that, as it turned out, many facilities did just that. In 

fact, one facility in proximity to the Environmental Petitioners’ 

members—the Chemical Co. Baton Rouge Plastics Plant—had 

 4 The Intervenor does not question that the Environmental 

Petitioners meet the second and third representational standing 

requirements. Nor do we. 
12 

pending RCRA applications to combust hazardous waste in its 

boilers (subject to RCRA regulation) before the 1998 Rule 

issued—which applications it promptly withdrew in May 1999 

when it achieved compliance with the Comparable Fuels 

Exclusion and could therefore burn such fuels free from RCRA 

regulatory constraints. See Br. for Pet’rs, Decls. Add. 37 

(May 17, 1999 Letter from Exxon Chemical Co. Baton Rouge 

Plastics Plant manager to Louisiana Department of 

Environmental Quality Office of Waste Services). 

The Intervenor also asserts that the Environmental 

Petitioners have not shown that burning comparable fuels is 

any more dangerous than burning fossil fuels and therefore 

they have not demonstrated the possibility of any injury from 

the Comparable Fuels Exclusion. “In EPA’s expert 

judgment,” they note, “burning these comparable fuels will 

have roughly the same risks, and the same affect [sic] on air 

quality, as burning commercially available virgin fuels.” Br. 

for Intervenor 21. The Environmental Petitioners, however, 

are challenging EPA’s assessment of the Comparable Fuels 

Exclusion’s risks—and we “assume for standing purposes” 

that the Environmental Petitioners are “correct on the merits.” 

See Sierra Club v EPA, 699 F.3d. 530, 533 (D.C. Cir. 2012).5

In addition, both EPA and the Intervenor challenge the 

standing of petitioner Environmental Technology Council, “a 

national non-profit trade association of commercial firms that 

provide technologies and services for recycling, treatment, and 

secure disposal of industrial and hazardous wastes.” 

Petitioners’ Rule 26.1 Disclosure Statement at 2 (Feb. 7, 2014). 

 5 Given our conclusion that NRDC and Sierra Club have 

demonstrated standing based on their members’ asserted injuries 

from facilities burning hazardous-waste-derived fuels, we need not 

consider the Environmental Petitioners’ alternative claims of 

informational and procedural injury. 
13 

We agree with EPA that under our precedent, the 

Environmental Technology Council’s interest in the 

litigation—“to protect its members’ competitive position in 

selling greater quantities of waste treatment and disposal 

services,”—“does not fall within the zone of interests” that 

RCRA is intended to protect. Br. for Resp. 18 (citing 

Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918, 

922-23 (D.C. Cir. 1989)); see also Sierra Club v. EPA, 292 

F.3d 895, 902-903 (D.C. Cir. 2002); Cement Kiln Recycling 

Coal. v. EPA, 255 F.3d 855, 871 (D.C. Cir. 2001). 

Environmental Technology Council therefore lacks a cause of 

action and we deny its petition for review. See Lexmark, Int’l, 

Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 

(2014). 

B. Statutory Construction 

 On the merits, the Petitioners first contend the Comparable 

Fuels Exclusion is inconsistent with the language of section 

6924(q). We review EPA’s interpretation of RCRA—a 

statute it is charged with administering—under the familiar 

two-step analysis of Chevron U.S.A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837 (1984). See Am. Chem. 

Council v. EPA, 337 F.3d 1060, 1063 (D.C. Cir. 2003). 

Under Chevron: 

We first ask “whether Congress has directly spoken to 

the precise question at issue,” in which case we “must 

give effect to the unambiguously expressed intent of 

Congress.” If the “statute is silent or ambiguous with 

respect to the specific issue,” however, we move to 

the second step and defer to the agency’s 

interpretation as long as it is “based on a permissible 

construction of the statute.” 

Natural Res. Def. Council v. EPA, 706 F.3d 428, 431 (D.C. Cir. 

2013) (quoting Chevron, 467 U.S. at 842–43 (quotation marks 
14 

omitted)). We stop on Chevron step 1 because we agree with 

the Petitioners that the Congress spoke directly to the question 

whether EPA may exclude what it calls “comparable 

fuels”—and foreclosed their exclusion. 

 Section 6924(q) unequivocally provides that EPA “shall 

promulgate regulations establishing . . . standards” such “as 

may be necessary to protect human health and the 

environment”—applicable to three categories of entities: (1) 

“owners and operators of facilities which produce a fuel . . . 

from any hazardous waste identified or listed under [42 U.S.C. 

§] 6921,” (2) “owners and operators of facilities which burn, 

for purposes of energy recovery, any [such] fuel” and (3) “any

person who distributes or markets any [such] fuel.” 42 U.S.C. 

§ 6924(q)(1)(A)-(C) (emphases added). The word “shall” 

makes the directive to regulate hazardous-waste-derived fuels 

mandatory. See Miller v. French, 530 U.S. 327, 337 (2000) 

(referring to “mandatory term ‘shall’ ”); Ass’n of Civilian 

Technicians, Mont. Air Ch. No. 29 v. FLRA, 22 F.3d 1150, 

1153 (D.C. Cir. 1994) (“The word ‘shall’ generally indicates a 

command that admits of no discretion on the part of the person 

instructed to carry out the directive.”). And the repeated use 

of “any” makes the mandate broadly inclusive—reaching all 

fuels produced from all listed hazardous wastes. See Nat’l 

Ass’n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1128 

(D.C. Cir. 2013) (“The word ‘any’ is usually understood to be 

all inclusive, and EPA presented no compelling reason why 

‘any’ should not mean ‘any.’ ” (quotation marks and citation 

omitted)); United States v. Gonzales, 520 U.S. 1, 5 (1997) 

(“Read naturally, the word ‘any’ has an expansive meaning, 

that is, one or some indiscriminately of whatever kind.” 

(quotation marks omitted)); cf. Massachusetts v. EPA, 549 

U.S. 497, 528-29 (2007) (Clean Air Act definition of “air 

pollutant” as “ ‘any air pollution agent or combination of such 

agents, including any physical, chemical . . . substance or 

matter which is emitted into or otherwise enters the ambient 
15 

air’ . . . embraces all airborne compounds of whatever stripe, 

and underscores that intent through the repeated use of the 

word ‘any’ ”) (emphases in original).6 

From the statute’s mandatory and inclusive language we 

can only conclude the Congress intended to require that EPA 

regulate the production, burning for energy recovery and 

distributing/marketing of all such fuels derived from all listed 

hazardous wastes—with the sole express exclusions of (1) 

certain oil-containing petroleum refinery wastes that are 

converted into petroleum coke and (2) facilities that burn only 

de minimis quantities of hazardous waste, see 42 U.S.C. 

§ 6924(q)(2)(A)-(B). Given the plain intent of the Congress, 

EPA had no discretion, as it claimed, to create its own 

Comparable Fuels Exclusion to exempt from regulation fuels 

that are derived from a listed hazardous waste and therefore 

subject to mandatory regulation under section 6924(q). Cf.

Nat’l Ass’n of Clean Water Agencies, 734 F.3d at 1128 

(“Congress’s use of the word ‘any’ in the definitional phrase 

‘any facility which combusts any solid waste from commercial 

or industrial establishments’ rendered the phrase clear and 

unambiguous, and EPA had no authority to create exceptions 

not explicitly listed in the statute through its definition of 

‘commercial or industrial waste.’ ” (citing Natural Res. 

Defense Council v. EPA, 489 F.3d 1250 (D.C. Cir. 2007)) 

(emphases in original)). 

 6

The intended breadth of coverage is further illustrated by the 

express inclusion of “any commercial chemical product which is 

listed under section 6921 of this title and which, in lieu of its original 

intended use, is (i) produced for use as (or as a component of) a fuel, 

(ii) distributed for use as a fuel, or (iii) burned as a fuel.” 42 U.S.C. 

§ 6924(q)(1) (emphasis added). During oral argument, EPA 

conceded that this language makes all commercial chemical products 

subject to section 6924(q). See Recording of Oral Argument at 

16:44 (May 12, 2014). 
16 

In particular, contrary to its stated rationale, EPA had no 

discretion to “reasonably determine that a material which is a 

legitimate fuel and which contains hazardous constituents at 

levels comparable to fossil fuels is not being ‘discarded’ within 

the meaning of [42 U.S.C. § 6903(27)].” 63 Fed. Reg. at 

33,783. This is the very reasoning that the Congress rejected 

when it enacted section 6924(q) to close EPA’s “regulatory 

loophole” for energy recovery. Horsehead Res. Dev. Co., 16 

F.3d at 1253. As we explained in AMC I, the Congress added 

section 6924(q) in response to EPA’s regulations that excluded 

from the definition of “solid waste” (and thereby of “hazardous 

waste”) hazardous materials that are—or will be—burned for 

energy recovery as not “discarded”; and the Congress 

“addressed this problem by deeming the offending materials to 

be ‘discarded’ and therefore within the statutory definition of 

‘solid waste.’ ” AMC I, 824 F.2d at 1189 (emphasis added).7

 

Thus, for the purpose of interpreting section 6924(q), 

“discarded” is not, as EPA claims in the 1998 Rule, “an 

ambiguous term.” 63 Fed. Reg. at 33,783. And EPA 

therefore has no discretion to “reasonably” construe the term to 

exclude hazardous-waste-derived fuels from regulation. 

 EPA argues in its brief that the Comparable Fuels 

Exclusion is itself a “standard” within the meaning of section 

 7

AMC I focused on “the burning of commercial chemicals as 

fuels, contrary to their original intended use”—a specific instance of 

energy recovery burning that section 6924(q) identifies. See supra

note 8. Section 6924(q)’s compass is, as we explained supra, far 

broader than that. See AMC I, 824 F.2d at 1189 (“ ‘Hazardous 

waste, as used in this provision [6924(q)], includes not only wastes 

identified or listed as hazardous under EPA’s regulations, but also 

includes any commercial chemical product (and related materials) 

listed pursuant to 40 C.F.R. § 261.33, which is not used for its 

original intended purpose but instead is burned or processed as 

fuel.’ ” (quoting H.R. Rep. No. 98-198, at 40 (1983) (emphasis 

added))).
17 

6924(q), which requires only that EPA establish “standards . . . 

as may be necessary to protect human health and the 

environment,” 42 U.S.C. § 6924(q)(1). Br. for Resp’t 28-29, 

33. EPA asserts that the Comparable Fuel Exclusion’s 

specifications and restrictions—in conjunction with existing 

Clean Air Act, Occupational Safety and Health Administration 

and Department of Transportation regulations—constitute 

EPA’s determination of “the level of regulation ‘necessary’ for 

the management, i.e., the storage, transportation, and burning, 

of comparable fuels that is protective of human health and the 

environment, as required by section 6924(q).” Id. at 29. But 

this theory was not part of EPA’s rationale as expressed in the 

1998 Rule. There, EPA concluded it need not establish any 

standards applicable to qualifying comparable fuels because a 

comparable fuel is not a “waste” but rather a “fuel product” and 

therefore excluded from the statute’s reach. See 63 Fed. Reg. 

at 33,783 (“The rationale for the Agency’s approach is that if a 

hazardous waste derived fuel is comparable to a fossil fuel in 

terms of hazardous and other key constituents and has a heating 

value indicative of a fuel, EPA has discretion to classify such 

material as a fuel product, not as a waste.”); id (“Under this 

final rule, EPA is excluding from the regulatory definition of 

solid waste hazardous waste-derived fuels that meet 

specification levels comparable to fossil fuels for 

concentrations of hazardous constituents and for physical 

properties that affect burning.”). 

 The rationale EPA now offers—that by setting criteria for 

exclusion from section 6924 regulation, it was in fact 

“establishing standards” under section 6924 specifications—is 

entirely post hoc. Accordingly, we may not sustain the 1998 

rule thereunder. See Nat’l Ass’n of Clean Water Agencies,

734 F.3d at 1138 (“EPA did not state this rationale in the 

rulemaking, and we cannot ‘accept appellate counsel’s post 

hoc rationalizations for agency action.’ ” (quoting Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 
18 

29, 50 (1983))); see also SEC v. Chenery Corp., 318 U.S. 80, 

95 (1943) (“[A]n administrative order cannot be upheld unless 

the grounds upon which the agency acted in exercising its 

powers were those upon which its action can be sustained.”). 

EPA’s new rationale is also flatly inconsistent with the 1998 

Rule, which expressly and repeatedly characterized its action 

as an “exclusion.” See, e.g., 63 Fed. Reg. at 33,782-84. 

Finally, the 1998 Rule did not even purport to apply the RCRA 

protection standard EPA now cites—that the regulatory 

standards be sufficient “to protect human health and the 

environment.” 42 U.S.C. § 6924(a), (q)(1). Instead, EPA 

considered only whether a fuel complying with the 

Comparable Fuels Exclusion’s specifications presents a 

“greater risk than burning fossil fuel”—which is quite a 

different level of protection—and EPA’s answer was merely 

that it “expects” not. See 63 Fed. Reg. at 33,783-84. 

 In support of its rationale as expressed in the 1998 

Rule—that hazardous wastes recycled for energy recovery are 

excluded from section 6924(q)’s “standard” mandate—EPA 

relies on Circuit precedent that has upheld EPA’s 

characterization of recycled materials as not “discarded” and 

therefore not “waste” subject to RCRA hazardous waste 

regulation. In AMC I, for example, we concluded at Chevron

step 1 that RCRA’s “solid waste” definition precludes EPA 

from regulating materials produced in the oil refining 

process—to be recycled through reintroduction at the 

appropriate stage of the refining process—because the 

Congress “clearly and unambiguously expressed its intent that 

‘solid waste’ (and therefore EPA’s regulatory authority) be 

limited to materials that are ‘discarded’ by virtue of being 

disposed of, abandoned, or thrown away.” 824 F.2d at 1193. 

Accordingly, the term’s plain meaning excludes materials that 

“are destined for beneficial reuse or recycling in a continuous 

process by the generating industry itself,” such as the recycled 

materials there. Id. at 1186 (emphasis omitted); accord Ass’n 
19 

of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1056 (D.C. 

Cir. 2000) (“[A]t least some of the secondary material EPA 

seeks to regulate as solid waste is destined for reuse as part of a 

continuous industrial process and thus is not abandoned or 

thrown away. Once again, ‘by regulating in-process 

secondary materials, EPA has acted in contravention of 

Congress’ intent’ because it has based its regulation on an 

improper interpretation of ‘discarded’ and an incorrect reading 

of our AMC I decision.” (quoting AMC I, 824 F.2d at 1193)). 

On the flip side, in Safe Food & Fertilizer v. EPA, 350 

F.3d 1263 (D.C. Cir. 2003), we upheld as permissible under 

Chevron step 2 EPA’s interpretation of the “solid waste” 

definition to exclude as not “discarded” industrial process 

byproducts recycled to produce zinc fertilizers as well as the 

fertilizers themselves. Id. at 1269-71; see also Am. Mining 

Cong. v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. 1990) (“Nothing 

in AMC [I] prevents the agency from treating as ‘discarded’ the 

wastes at issue in this case, which are managed in land disposal 

units that are part of wastewater treatment systems.”) 

(emphases omitted). None of the cited cases, however, 

involved fuels burned for energy recovery so as to come under 

section 6924(q), which, as we explained in AMC I, “deem[s]” 

the materials burned for energy recovery to be “ ‘discarded’ 

and therefore within the statutory definition of ‘solid waste.’ ” 

AMC I, 824 F.2d at 1189; see Horsehead Res. Dev. Co., 16 

F.3d at 1263 (“AMC I involved an altogether different facet of 

waste disposal governed by a different statutory section, i.e., 

the scope of the RCRA term ‘solid waste’ . . . .”). Outside the 

section 6924(q) energy recovery context—as the cited cases 

demonstrate—materials to be reused may be reasonably—or 

even necessarily—characterized as not “waste” because they 

are not “discarded.” See AMC I, 824 F.2d at 1189 (“This 

specific measure did not, however, revamp the basic 

definitional section of the statute.”). But not under section 

6924(q), which provides that EPA “shall promulgate 
20 

regulations establishing . . . standards” applicable to producers, 

burners and distributors/marketers of a fuel produced from 

“any hazardous waste identified or listed under [42 U.S.C. 

§ 6921]” and deems the listed component hazardous materials 

to be “discarded” waste. 42 U.S.C. § 6924(q)(1)(A)-(C) 

(emphasis added). 

 Finally, EPA contends that the “Petitioners’ claim that the 

Comparable Fuels Rule is inconsistent with section 6924(q) 

has been waived because it was not raised in comments during 

the rulemaking.” Br. for Resp’t 21; see Natural Res. Def. 

Council v. EPA, 25 F.3d 1063, 1073–74 (D.C. Cir. 1994) (“We 

do not reach the merits of this challenge because petitioners 

failed to raise this question . . . before the agency during the 

notice and comment period. They have therefore waived their 

opportunity to press this argument in court.”); see also Military 

Toxics Project v. EPA, 146 F.3d 948, 956-57 (D.C. Cir. 1998). 

In response, the Petitioners point to two comments they claim 

raised their statutory argument. See Reply Br. 9-10. First, 

petitioner Environmental Technology Council submitted a 

comment criticizing EPA’s “implementing approach” as 

an attempt to defer RCRA § 3004(q)-(s) regulation of 

. . . hazardous wastes to the CAA in accordance with 

RCRA § 1006(a) to avoid duplication, but without 

making the essential finding that such a deferral 

satisfies the objectives of RCRA. For example, EPA 

has not conducted any kind of technical or risk 

analysis showing how a blanket exemption from all 

RCRA Subtitle C controls for hazardous wastes that 

meet the comparable fuel spec somehow adequately 

protects human health and the environment. Thus, the 

proposal is legally deficient. 

Joint Appendix (JA) 387. Second, citing an EPA background 

document’s explanation for rejecting a “risk” approach in 
21 

setting the comparable fuel specifications in favor of a 

benchmark approach, commenter Molten Metal Technology 

Inc. (Molten Metal) asserted: 

Therefore, the Agency’s comparable fuels proposal 

will likely result in higher exemption concentrations 

than levels that would normally be derived using a 

risk-based approach. Such an approach would 

violate the clear Congressional mandate in Section 

3004(q) of RCRA to regulate the burning of 

hazardous waste for energy recovery “as may be 

necessary to protect human health and the 

environment.” 

JA 374. 

We agree with EPA that both comments seem to focus 

more on the way EPA implemented the Comparable Fuels 

Exclusion than on its statutory authority vel non to create any 

such exclusion. Nonetheless, EPA’s response to Molten 

Metal’s comment suggests that EPA understood Molten Metal 

to challenge EPA’s statutory authority to exclude comparable 

fuels in the first place and affirms its authority to do so: 

“Section 3004(q) applies to hazardous wastes which are burned 

for energy recovery. The provision does not speak to EPA’s 

authority to determine whether particular fuels produced from 

secondary materials are or are not, products rather than 

wastes.” JA 547. Thus, the issue was expressly addressed by 

EPA and is properly before the court. See Appalachian Power 

Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998) (“The purpose 

of the exhaustion requirement is to ensure that the agency is 

given the first opportunity to bring its expertise to bear on the 

resolution of a challenge to a rule.”). Moreover, even if a 

party may be deemed not to have raised a particular argument 

before the agency, “EPA ‘retains a duty to examine key 

assumptions as part of its affirmative burden of promulgating 
22 

and explaining a nonarbitrary, non-capricious rule”’ and 

therefore . . . ‘EPA must justify that assumption even if no one 

objects to it during the comment period.’ ” Id. (quoting Small 

Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 

534-35 (D.C. Cir. 1983); see also Okla. Dep’t of Envtl. Control 

v. EPA, 740 F.3d 185, 192 (D.C. Cir. 2014); Ne. Md. Waste 

Disposal Auth. v. EPA, 358 F.3d 936, 948 (D.C. Cir. 2004) (per 

curiam). As EPA’s response to Molten Metal’s comment 

demonstrates, that EPA had statutory authority under section 

6924(q) to exempt some hazardous-waste-derived fuels from 

regulation was a “key assumption” underlying EPA’s exercise 

of its “discretion to classify such material as a fuel product, not 

as a waste,” 63 Fed. Reg. at 33,783, and thereby “exclude” it 

from section 6924(q)’s ambit. Accordingly, we reject EPA’s 

“waiver” argument. 

For the foregoing reasons, we grant the Environmental 

Petitioners’ petitions for review and vacate the Comparable 

Fuels Exclusion codified at 40 C.F.R. §§ 261.4(a)(16) and 

261.38. We deny Environmental Technology Council’s 

petition for review. 

So ordered.