 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 12, 2014                  Decided June 27, 2014

                       No. 08-1144

              SIERRA CLUB AND LOUISIANA
           ENVIRONMENTAL ACTION NETWORK,
                     PETITIONERS

                            v.

          ENVIRONMENTAL PROTECTION AGENCY,
                    RESPONDENT

    AMERICAN PETROLEUM INSTITUTE AND GASIFICATION
               TECHNOLOGIES COUNCIL,
                    INTERVENORS


         Consolidated with Nos. 08-1145, 12-1295


      On Petitions for Review of Final Actions of the
      United States Environmental Protection Agency


     Khushi K. Desai argued the cause for petitioners. With
her on the briefs were David R. Case and James S. Pew.

     Norman L. Rave Jr., Attorney, U.S. Department of
Justice, argued the cause for respondent. With him on the
brief were Robert G. Dreher, Acting Assistant Attorney
General, and Alan H. Carpien, Attorney, U.S. Environmental
                              2
Protection Agency. Cynthia J. Morris, Attorney, U.S.
Department of Justice, entered an appearance.

    Thomas Sayre Llewellyn argued the cause for intervenors.
With him on the brief were Harry M. Ng and Deanne M.
Ottaviano. Michael R. See entered an appearance.

   Before: HENDERSON and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court by Circuit Judge MILLETT.

     MILLETT, Circuit Judge: In 2008, the Environmental
Protection Agency promulgated a rule that exempts from
regulation under the Resource Conservation and Recovery
Act (RCRA), 42 U.S.C. §§ 6901 et seq., certain hazardous
residuals left over from the petroleum refining process. See
73 Fed. Reg. 57 (Jan. 2, 2008). That exemption, referred to as
the Gasification Exclusion Rule, applies when those residual
materials are inserted into gasification units to produce
“synthesis gas,” which is a type of fuel that may be burned for
the recovery of energy.

     Petitioners Sierra Club, Louisiana Environmental Action
Network (Louisiana Network), and Environmental
Technology Council petitioned this court for review of the
Gasification Exclusion Rule, arguing that it violates RCRA’s
plain language requiring the regulation of hazardous wastes
used as fuel, 42 U.S.C. § 6924(q), and that the Rule’s
promulgation violated the procedural and substantive
requirements of the Administrative Procedure Act, 5 U.S.C.
§§ 551 et seq. We hold that the regulation violates the plain
language of RCRA and, for that reason, is vacated.
                              3
                              I

                    Statutory Framework

     The Resource Conservation and Recovery Act, 42 U.S.C.
§§ 6901 et seq., is the primary federal statute addressing the
management of solid and hazardous waste. It prescribes a
nationwide,    “cradle-to-grave”    regulatory     framework
governing the “safe treatment, storage and disposal of
hazardous waste,” United Technologies Corp. v. EPA, 821
F.2d 714, 716 (D.C. Cir. 1987), and charges the EPA with
promulgating regulations setting the necessary standards to
achieve those goals, 42 U.S.C. § 6922(a).

    While the statute’s definitional provisions can be
technical and detailed, as relevant here, RCRA defines
“hazardous waste” as “solid waste” that poses a danger to
human or environmental health. 42 U.S.C. § 6903(5). “Solid
waste,” in turn, is defined as garbage, refuse, sludge, “and
other discarded material.” Id. § 6903(27).

     In Section 6921, Congress mandated that the EPA
promulgate regulations identifying the hazardous wastes that
are subject to RCRA regulation, “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. §§ 6921(a)-(b).

    Initially, the EPA declined to regulate hazardous
materials that were burned as fuel or used to produce fuel,
reasoning that those uses as fuel meant the materials were not
“discarded,” and thus they were not regulable as waste. See
40 C.F.R. § 261.2(c)(2) (1983); Horsehead Resource Dev. Co.
v. Browner, 16 F.3d 1246, 1253 (D.C. Cir. 1994) (citing 45
                              4
Fed. Reg. 33,084, 33,092-33,094, 33,120 (May 19, 1980));
see also American Mining Congress v. EPA, 824 F.2d 1177,
1189 (D.C. Cir. 1987) (AMC I).

    To redress that “major deficiency” in the EPA’s
administration of RCRA, S. Rep. No. 284, 98th Cong., 1st
Sess. 36 (1983); H.R. Rep. No. 198, 98th Cong., 1st Sess. 39
(1983), Congress amended the statute in 1984 to add Section
6924(q). That Section specifically addresses the regulation of
“Hazardous waste used as fuel.” 42 U.S.C. § 6924(q).
Specifically, Section 6924(q) directs the EPA to establish
regulatory standards, as “necessary to protect human health
and the environment,” to govern facilities that:

    (A) “produce a fuel” from “any hazardous waste
    identified or listed under section 6921 of this title,”
    whether alone or as a component combined with other
    materials;
    (B) “burn, for purposes of energy recovery” a fuel
    produced under subsection (A) or containing any other
    hazardous waste component in fuel that is listed under
    Section 6921; or
    (C) “distribute[] or market[] any fuel” produced under
    subsection (A) or containing any other hazardous waste
    component in fuel that is listed under Section 6921.

42 U.S.C. § 6924(q)(1). Congress added that, for purposes of
this subsection, “the term ‘hazardous waste listed
under section 6921’” shall “include[] any commercial
chemical product” that “is listed under section 6921 of this
title” and that, “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.” Id.
                               5
                   Regulatory Background

     Eleven years after Congress adopted Section 6924(q), the
EPA proposed a rule that would exclude from RCRA
regulation those petroleum refinery waste products that are
reinserted into specified petroleum refining processes. See 60
Fed. Reg. 57,747 (Nov. 20, 1995). The EPA reasoned that
such materials do not constitute “waste” because they are
recycled as part of an ongoing petroleum production process,
and thus are never “discarded” within the meaning of
RCRA’s definition of hazardous solid waste, 42 U.S.C.
§ 6903(5) & (27). See 60 Fed. Reg. at 57,752-57,754.
Among the refinery processes the EPA sought to exclude
were distillation, catalytic cracking, fractionation, and thermal
cracking (also known as coking). See id. at 57,753.

     Three weeks before the final version of that regulation
was to be issued, the EPA published a Notice of Data
Availability requesting comment on whether “gasification”
should be added to the list of excluded processes. See 63 Fed.
Reg. 38,139 (July 15, 1998). Gasification is a process that
transforms oil-bearing, residual materials separated out by the
petroleum refining process into a distinct form of fuel known
as synthesis gas or “syngas,” which can be used for energy
recovery. See 63 Fed. Reg. at 38,141. Specifically, while
syngas can be used to produce other chemicals, it can also be
burned as a fuel to produce electricity or steam. See id.

    When the EPA published the final rule three weeks later,
however, gasification was not included as one of the exempt
processes. See 63 Fed. Reg. 42,110, 42,184 (Aug. 6, 1998).

     Four years later, the EPA revisited the matter and
proposed a rule that would exclude from RCRA regulation
residual oil-bearing materials left over from the petroleum
                              6
refining process that are destined for insertion into a
gasification unit to produce synthesis gas. See 67 Fed. Reg.
13,684 (March 25, 2002). That proposal differed from the
query in the 1998 Notice of Data Availability in that it
proposed that those materials would be exempt whether or not
the gasification unit was part of a petroleum refining
operation.     Id. at 13,690 (codified at 40 C.F.R.
§ 261.4(a)(12)(i)).

     Also unlike the original 1998 Notice of Data Availability,
the proposed Gasification Exclusion Rule conditioned the
exemption from RCRA on compliance with a series of
conditions on the syngas-creation process: (1) the system into
which the material is inserted must meet the proposal’s
definition of a “gasification system;” (2) the gasification
system must generate a synthesis gas that meets the
specifications for synthesis gas fuel that the EPA would
exempt from the definition of solid waste; (3) the residual
waste materials generated from the gasification system must
not be placed on the land if they exceed the applicable
regulatory standards for chromium, lead, nickel, vanadium,
arsenic, or antimony; and (4) the oil-bearing hazardous
secondary materials employed to create syngas must not be
placed on the land or speculatively accumulated prior to
insertion into the gasification system. 67 Fed. Reg. at 13,690.

     Petitioners Sierra Club and Environmental Technology
Council, as well as other members of the public, submitted
comments on the proposed rule that expressed substantial
concern about the potential for environmental harm if
gasification units were allowed to operate without RCRA
regulation, and offered suggestions to expand or alter the
EPA’s proposed conditions. See, e.g., Comments of the
Environmental Technology Council, Docket No. EPA-HQ-
RCRA-2002-002-0049 (Sept. 10, 2002); Comments of Sierra
                               7
Club Lone Star Chapter, Docket No. EPA-HQ-RCRA-2002-
0002-0060 (Sept. 10, 2002). In particular, those comments
voiced concern that the proposed exclusion, even with the
proposed conditions, would fail to regulate hazardous air
emissions produced by the gasification process adequately,
and Sierra Club explained that the resulting environmental
risks would disproportionately affect the low-income and
minority neighborhoods where many refineries are located.
See id.

     When the rule was finalized on January 2, 2008,
however, the EPA simply appended “gasification” to the list
of refining processes wholly exempted from RCRA in 40
C.F.R. § 261.4(a)(12)(i), abandoning all of its originally
proposed conditions, and rejecting those suggested by
commenters. See 73 Fed. Reg. 57, 58 (Jan. 2, 2008). As a
result, under the final Gasification Exclusion Rule, oil-bearing
hazardous secondary materials that are otherwise hazardous
wastes under Section 6921 of RCRA are exempted from
RCRA regulation if they are eventually inserted into a
gasification unit located at some petroleum refinery and used
to produce synthesis gas. See id.

                              II

     As a preliminary matter, Industry-Intervenors argue that
this court lacks subject matter jurisdiction over Petitioners’
challenge to the Gasification Exclusion Rule. They contend
that Petitioners lack standing, and that their petition to this
court for review of the Rule was rendered untimely by their
subsequent administrative petition to the EPA seeking the
agency’s reconsideration of the Rule.          We hold that
Petitioners Sierra Club and Louisiana Network both have
standing and timely sought review, but that the Environmental
                               8
Technology Council’s petition must be denied for failure to
state a legal claim.

                               A

      The requirement that a party invoking federal court
jurisdiction establish standing is an essential, structural
constraint on the power of Article III courts that enforces the
Constitution’s separation of powers. See Hollingsworth v.
Perry, 133 S. Ct. 2652, 2661 (2013); Susan B. Anthony List v.
Driehaus, No. 13-193, slip op. at 7 (U.S. June 16, 2014)
(“The law of Article III standing, which is built on separation-
of-powers principles, serves to prevent the judicial process
from being used to usurp the powers of the political
branches.”) (quoting Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1146 (2013)).          The “irreducible constitutional
minimum” for standing is (i) the party must have suffered a
concrete and particularized injury in fact, (ii) that was caused
by or is fairly traceable to the actions of the defendant, and
(iii) is capable of resolution and likely to be redressed by
judicial decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-561 (1992).

     When, as here, petitioners assert “representational
standing” to bring suit on behalf of their members, they must
demonstrate that at least one of their members would
otherwise have standing to sue in his or her own right; that the
interests they seek to protect are germane to their
organizations’ purposes; and that neither the claim asserted
nor the relief requested requires the participation of individual
members. See Defenders of Wildlife v. Perciasepe, 714 F.3d
1317, 1323 (D.C. Cir. 2013); see also Friends of the Earth,
Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167,
181 (2000).
                                 9
    The EPA does not dispute Sierra Club’s or Louisiana
Network’s standing at all. But Intervenors, the American
Petroleum Institute and the Gasification Technologies
Council, contend that Petitioners lack standing, arguing
specifically that Petitioners have not been injured because
they have not sufficiently identified a refinery near their
members that, at the time of the petitions, was relying on the
Gasification Exclusion Rule. That argument misunderstands
both the law and the record.

     When, as here, the party seeking judicial review
challenges an agency’s regulatory failure, the petitioner need
not establish that, but for that misstep, the alleged harm
certainly would have been averted. Rather, the petitioner
need demonstrate only a “‘substantial probability’ that local
conditions will be adversely affected, and thus will harm
members of the petitioner organization.”               American
Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000); see
also Susan B. Anthony List, No. 13-193, slip op. at 8 (“An
allegation of future injury may suffice if the threatened injury
is ‘certainly impending,’ or if there is a ‘substantial risk’ that
the harm will occur.”) (quoting Clapper, 133 S. Ct. at 1150
n.5); Sierra Club v. EPA, No. 13-1014, slip op. at 11 (D.C.
Cir. June 13, 2014) (“Because ‘[e]nvironmental and health
injuries often are purely probabilistic,’ the court has
‘generally require[d] that petitioners claiming increased health
risks to establish standing demonstrate a substantial
probability that they will be injured[.]’”) (quoting Natural
Resources Defense Council v. EPA, 464 F.3d 1, 6 (D.C. Cir.
2006)). 1
1
  There is no dispute in this case that, if the asserted injuries are
sufficient, the causation and redressability prongs of standing are
satisfied. The EPA’s exclusion of gasification from RCRA
regulation is a direct cause of the asserted injuries, and a judicial
order invalidating the rule would remediate that asserted injury.
                              10

     The record in this case documents the very substantial
and concrete risk of harm that some of Petitioners’ members
face. Petitioners’ declarations identified four individuals who
live or work in close proximity to three specific refineries—
Frontier El Dorado Refining Company in El Dorado, Kansas,
Motiva Enterprises in Delaware City, Delaware, and Exxon
Mobil Corporation in Baytown, Texas. See Petitioners’
Opening Br., Declarations Addendum 5-6 (declaration of
Sierra Club member Lyle English); id. at 10-13 (Sierra Club
and Louisiana Network member William Fontenot); id. at 17-
22 (Sierra Club member Karla Land); id. at 26-29 (Sierra
Club member Amy Roe). At the time the petition for review
was filed in this court, each of those refineries already had a
gasification unit in place, ready and able to process the very
hazardous materials that are the subject of the challenged
regulation. See id. The declarations further explained those
individuals’ particularized fears of serious health and
environmental consequences from the gasification process,
and their individual behavioral changes prompted by the toxic
exposure that Petitioners aver the regulatory exemption will
cause. See id.

     In addition, the EPA itself, in assessing the costs and
benefits of its Rule, identified by name those same three
refineries as expected to take advantage of the Gasification
Exclusion Rule, and detailed the over 100,000 tons of oil-
bearing hazardous secondary material those three refineries
alone could process in a given year. See 73 Fed. Reg. at 68-
69; EPA Assessment of the Potential Costs, Benefits, and
Other Impacts of the Exclusion for Gasification of Petroleum
Oil-bearing Secondary Materials—Final Rule at 12 (2007),
Docket No. RCRA-2002-0002-0089.             Chevron Texaco
confirmed that assessment, explaining in its comments on the
Rule that “[t]here are currently over 70 Chevron Texaco
                               11
owned or licensed gasifiers operating or under construction
around the world,” including “the gasifier at Frontier Oil’s
refinery in El Dorado, Kansas (refinery once owned by
Texaco). That gasifier has been operating 6 years now.”
Comments of Chevron Texaco, Docket No. RCRA-2002-
0002-0058 (Sept. 10, 2002).

     Intervenors American Petroleum Institute and the
Gasification Technologies Council invoke this Court’s
decision in American Petroleum Institute v. EPA, supra,
which found no standing to challenge a different RCRA
exemption. The differences in the factual records of the two
cases, however, actually underscore Sierra Club’s and
Louisiana Network’s standing here. The American Petroleum
petitioners lacked standing to challenge the EPA’s exemption
of the petroleum coking process from RCRA because those
organizations put nothing at all in the record sufficient to
demonstrate a substantial probability that their affiants would
be exposed to hazardous materials as a result of the
exemption. See 216 F.3d at 67-68 (“[N]othing is averred to
the effect that * * * hazardous waste quenching currently
exists or is substantially likely to exist in those facilities
generating coke product to which members of environmental
petitioners’ organizations are exposed.”); see also Sierra
Club, No. 13-104, slip op. at 11 (finding that environmental
petitioners failed to demonstrate standing because they
offered “no evidence” and made “no attempt” to tie the EPA’s
actions to a substantial probability that their members would
suffer diminished air quality).       Here, by contrast, the
declarants have identified with specificity the substantial risks
they face from neighboring refineries’ existing gasification
systems and the adverse effects of the Gasification Exclusion
Rule on their everyday behavior. And the record reconfirms
the industry’s commitment to undertaking the gasification
process authorized by the challenged Rule.
                               12

     The Institute and Council nevertheless characterize
Petitioners’ concern that refineries will use the Exclusion that
they specifically sought from the EPA as “a matter of
speculation” insufficient to establish standing. Intervenors’
Br. 12. But once the EPA promulgated the Gasification
Exclusion Rule, it was “a hardly-speculative exercise in naked
capitalism” to predict that facilities with existing gasification
units on site would take advantage of the Exclusion for which
they lobbied. See American Trucking Ass’n v. Federal Motor
Carrier Safety Admin., 724 F.3d 243, 248 (D.C. Cir. 2013)
(quoting Abigail Alliance for Better Access to Developmental
Drugs v. Eschenbach, 469 F.3d 129, 135 (D.C. Cir. 2006));
see also Natural Resources Defense Council v. EPA, No. 98-
1379, slip op. at 11-12 (D.C. Cir. June 27, 2013).

     Moreover, the Institute and Council surely cannot believe
their own argument. When intervening in this litigation, they
established Article III standing for themselves by confirming
that their members “would” be injured should the Rule be
vacated by this court because they would be deprived of the
affirmatively desired opportunity to burn oil-bearing
secondary hazardous waste in their gasification systems free
of RCRA regulation. Intervenors’ Br. 19. Similarly, in the
Institute’s comments on the 1998 Notice of Data Availability,
it stated that “many of [the Institute]’s members own and
operate petroleum refineries that generate oil-bearing
secondary materials that are, or can be, reused at a refinery in
production processes such as gasification. * * * Thus, [the
Institute] has a strong interest in the subject matter of the
[Notice of Data Availability] on whether the * * * exclusion
should apply to refining industry oil-bearing secondary
materials inserted into gasification units.” Comments of the
American Petroleum Institute, Docket No. F-98-PR2A-FFFFF
(Oct. 13, 1998) (emphasis added).
                               13

     When EPA solicited comments on the Gasification
Exclusion Rule again in 2002, the Institute reiterated its 1998
comments, and re-emphasized its stake in the rulemaking,
explaining that “several of [its] members already employ
gasification technology at their refineries.” Comments of the
American Petroleum Institute, Docket No. F-2002-RPRP-
FFFF (Sept. 10, 2002) (emphasis added).

     Furthermore, in its motion to intervene in this Court, the
Institute asserted that it “has a very substantial interest in the
outcome of this case” because several of [the Institute]’s
members “employ the gasification process at issue here.”
American Petroleum Institute Motion to Intervene, Docket
No. 1114593, at 3 (April 30, 2008) (emphasis added). In
addition, the motion emphasized that a “remand or setting
aside of the challenged regulation could therefore operate to
the economic detriment of [the Institute]’s members.” Id.
The Intervenors’ comments and intervention papers thus
highlight the present-tense reality of their gasification
activities and abilities; their “very substantial interest” in
employing the process exempted by the Gasification
Exclusion Rule, id.; and correspondingly, the substantial
present-tense threat posed to their petitioning neighbors.

    Standing, in other words, is not a game of heads the
industry intervenors win; tails petitioners lose.         The
“opportunity injury” that the Institute and Council assert
means that they are “able and ready,” both technologically
and programmatically, to exercise the opportunity that the
regulation affords them. See Northeastern Florida Chapter of
the Ass’n of General Contractors v. City of Jacksonville, 508
U.S. 656, 666 (1993); Dynalantic Corp. v. Department of
Defense, 115 F.3d 1012, 1016 (D.C. Cir. 1997). The very
opportunity that the Institute and Council seek is the same
                                14
opportunity that Petitioners attest poses a substantial threat to
their health and living environment. Petitioners, for their part,
need not wait to bring suit until they can actually detect the
toxic contaminants exuding. 2

                                 B

     Petitioner Environmental Technology Council filed its
own separate petition in this court, No. 08-1145, challenging
the Gasification Exclusion Rule on the same substantive
grounds as those articulated in the petitions filed by Sierra
Club and Louisiana Network, Nos. 08-1144, 12-1295. This
court has repeatedly held, however, that the Council lacks
prudential standing under RCRA to litigate “either directly or
as a proxy for the environmental interests of the public for
whose protection the Act was presumably passed.” Sierra
Club v. EPA, 292 F.3d 895, 902-903 (D.C. Cir. 2002)
(Environmental Technology Council lacks “prudential
standing” under RCRA because it is a self-proclaimed
“national trade association of commercial firms that provide
technologies and services for recycling, treatment, and secure
disposal of industrial and hazardous wastes,” whose only
interest in RCRA regulation is to promote “ever more
stringent regulation ‘to improve the business opportunities of
treatment firms’—an end we have consistently and repeatedly
held lies outside the ‘zone of interests’ protected by RCRA.”)
(quoting Hazardous Waste Treatment Council v. Thomas, 885
F.2d 918, 925-926 (D.C. Cir. 1989)); accord Cement Kiln
Recycling Coalition v. EPA, 255 F.3d 855, 871 (D.C. Cir.
2001).
2
  Because Petitioners have established standing based on the
asserted injuries that arise from their exposure to the gasification
process, we need not address their claims of informational and
procedural injury.
                               15

     The Supreme Court has recently clarified that
“‘prudential standing’ is a misnomer,” and that the “zone of
interests” inquiry is in fact a question of whether a plaintiff
“falls within the class of plaintiffs whom Congress has
authorized to sue,” not a question of standing. Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
1386-1388 (2014). But whether characterized as prudential
standing or legal capacity to state a claim under RCRA, the
Environmental Technology Council has failed in this case to
make any showing in the briefs or record that it has a legally
cognizable interest in this litigation. See Sierra Club, 292
F.3d at 903.

     To be sure, had the Council joined a single petition with
the Sierra Club or Louisiana Network, then our determination
that at least one of the joint petitioners had standing and a
legally cognizable claim would have averted this question.
See, e.g., Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir.
2009). But because the Council initiated its own independent
petition for review, creating its own distinct case in this court,
the Council has no co-parties to its suit who could establish
standing or could assert a legally cognizable claim for relief.
While the Council’s petition was later consolidated with those
of the Sierra Club and Louisiana Network, the mere clerical
act of consolidating multiple petitions for efficient review
does not obviate the need for each petition on which a
judgment issues to independently establish standing or (after
Lexmark) its legal capacity to prosecute the action.

    We therefore hold that the Environmental Technology
Council lacks a “legislatively conferred cause of action” that
encompasses its RCRA claims, Lexmark, 134 S. Ct. at 1382,
and we accordingly deny its petition, No. 08-1145.
                              16



                              C

     The Institute and Council also argue that this court lacks
jurisdiction because Sierra Club and Louisiana Network
petitioned the EPA for administrative review of the
Gasification Exclusion Rule in the form of a “Petition for
Reconsideration,” rather than in a “Petition for New
Rulemaking.” In their view, that titling rendered the Rule
non-final and thus non-appealable.

     That is not correct. Regardless of how they captioned
their administrative petition, Sierra Club and Louisiana
Network explicitly sought the EPA’s substantive review of a
final rule, for which the only remedy was a new rulemaking.
Indeed, one of Petitioners’ primary objections to the
Gasification Exclusion Rule was that its promulgation did not
comply with the APA’s notice and comment rulemaking
requirements. That is a fault that could only be repaired with
a new rulemaking and new opportunity for public comment.
See Petition for Reconsideration at 5-8 (“Because EPA relied
on the ‘original proposal suggested in the July 15, 1998’
NODA and not on the 2002 proposed rule to formulate the
Hazardous Waste Gasification Rule, the final rule was not a
logical outgrowth of the proposed rule and the public was
denied the opportunity for notice and comment in several
critical areas.”); see generally American Mining Congress v.
EPA, 907 F.2d 1179, 1185 (D.C. Cir. 1990) (holding that a
petition for “administrative reexamination” was, despite its
label, a petition for new rulemaking, where the record of the
case made clear that was how the EPA would have treated the
petition).
                              17
     Furthermore, a petitioner’s stylistic mislabeling could not
singlehandedly revert the EPA’s final Gasification Exclusion
Rule to a non-final proposal—the type of tentative agency
judgment that could have been amended without proceeding
through new notice and comment rulemaking. See Columbia
Falls Aluminum Co. v. EPA, 139 F.3d 914, 919 (D.C. Cir.
1998) (“Once a rule is final, an agency can amend it only
through a new rulemaking.”). We thus hold that the
administrative petition here was a request for new
rulemaking, which does not “pose any problem for our subject
matter jurisdiction.” Id. Sierra Club and Louisiana Network
timely filed their 2008 petition for review of the final
Gasification Exclusion Rule, No. 08-1144, and we therefore
have jurisdiction over both that petition and their timely 2012
petition for review of EPA’s denial of their administrative
petition for reconsideration, No. 12-1295.

                              III

     Turning, at long last, to the merits, the question in this
case is whether the Gasification Exclusion Rule violates the
statutory mandate in Section 6924(q) of RCRA that the EPA
regulate “[h]azardous waste used as fuel.” 42 U.S.C.
§ 6924(q). Because Congress has charged the EPA with
enforcing RCRA, 42 U.S.C. § 6934(e), we review that rule
under the familiar, two-step framework of Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). First, we determine whether Congress has directly
spoken to the precise question at issue. Id. at 842-843. If it
has, “that is the end of the matter,” and we must give effect to
the “unambiguously expressed intent of Congress.” Id. If, on
the other hand, the statute is silent or ambiguous with respect
to the specific issue, we deferentially review the agency’s
reading of the statute to determine whether it is reasonable.
Id. at 843. In this case, as in Natural Resources Defense
                             18
Council v. EPA, No. 98-1379, supra, our analysis begins and
ends at Chevron’s first step.

     Section 6924(q) is direct and unqualified in its compass.
The EPA “shall” regulate facilities that “produce a fuel []
from any hazardous waste identified or listed under section
6921,” burn such a fuel, or distribute or market such a fuel.
42 U.S.C. § 6924(q)(1).          To drive the provision’s
comprehensiveness home, Congress not once, not twice, but
eleven times employed the all-embracing adjective “any” to
describe when hazardous wastes used as a fuel are covered.
See id. “[Ten] ‘any’s’ in one sentence” and an eleventh a few
lines later, “and it begins to seem that Congress meant the
statute to have expansive reach.” United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 7 (2008).

     There is, moreover, no serious question that the
Gasification Exclusion Rule exempts from RCRA hazardous
materials that are “listed under section 6921.” 42 U.S.C.
§ 6924(q)(1).      The “oil-bearing hazardous secondary
materials” at issue here are identified as hazardous materials
in the regulations the EPA adopted implementing Section
6921. See 73 Fed. Reg. at 58; 40 C.F.R. §§ 261.31-261.33.
But for their use in the production of syngas fuel, they would
unquestionably be regulated as hazardous waste under Section
6921. Indeed, it is precisely their usage to “produce a fuel”
that puts the materials squarely within Section 6924(q)’s
grasp. 42 U.S.C. § 6924(q)(1)(A).

    The EPA’s efforts to extricate its Rule from that plain
text all fail. First, the EPA argues that the hazardous
materials can be liberated from RCRA’s regulatory mandate
on the ground that their use to make the fuel syngas means
they are not hazardous “waste,” because they are not
discarded within the meaning of RCRA’s definition of “solid
                              19
waste,” 42 U.S.C. § 6903(27). That reading would stand
Section 6924(q) on its head. By its plain terms, that Section
applies to hazardous waste precisely because it is used to
“produce a fuel.” 42 U.S.C. § 6924(q)(1)(A). The materials’
use in the production of fuel thus cannot simultaneously put
them within and without RCRA.

     Second, the EPA argues that its exception is confined to
the creation of syngas fuel as part of an ongoing production
process. The problem with that argument is that Congress
wrote no such qualification into Section 6924(q); the
provision’s eleven “any’s,” in fact, defy such limitation. See
National 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); see also Natural
Resources Defense Council v. EPA, No. 98-1379, slip op. at
15 (“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) certain oil-containing
petroleum refinery wastes and facilities that burn only de
minimis quantities of hazardous waste, see 42
U.S.C.§ 6924(q)(2)(A)-(B).”).

     Third, the EPA’s reasoning forgets that Congress enacted
Section 6924(q) specifically to overturn the EPA’s exclusion
from regulation of those very same materials under that very
same rationale. See, e.g., S. Rep. No. 284, supra, at 37 (1983)
(clarifying that the amendment applies to “hazardous waste-
derived fuels, fuels blended with hazardous wastes, and
                               20
hazardous wastes burned without being blended as fuels,” and
that EPA may no longer interpret such materials as non-
“wastes”); H.R. Rep. No. 198, supra, at 39 (1983) (“Section
[6924(q)] corrects a major deficiency in the present RCRA
regulations by requiring EPA to exercise its existing authority
over hazardous waste-derived fuels by regulating their
production, distribution and use. * * * The Committee wants
to assure that EPA will exercise its authority over all facilities
that blend or burn hazardous waste for energy recovery.”)
(emphasis added).

     Fourth, the EPA contends that this court’s decision in
AMC I, 824 F.2d 1177, requires the categorical exclusion of
materials that are reused within ongoing production processes
because they are not discarded as “solid waste.” In its view,
AMC I forbids the EPA to regulate facilities producing syngas
from hazardous materials through the gasification process,
since those materials too are not discarded, and thus are not
“solid waste.”

     That argument overreads AMC I. AMC I involved not
Section 6924(q), but RCRA’s general definitional section
pertaining to “solid waste,” 42 U.S.C. § 6903(27), and the
EPA’s undifferentiated subjection to RCRA regulation of a
broad variety of materials that are reused or recycled as part
of ongoing petroleum refining processes.

     In rejecting that categorical expansion of RCRA, the
AMC I court went out of its way to separate out from its
ruling the “specific problem” of hazardous wastes “used as
fuel,” which would subject them to Section 6924(q). 824
F.2d at 1189. Hazardous residuals used as fuel, the court
explained, were different because Congress statutorily
deemed such materials to be “discarded” and therefore within
the statutory definition of “solid waste.” Id. (citing H.R. Rep.
                              21
No. 198, supra, at 40 (1983)). “For the purpose of
interpreting section 6924(q),” then, the term “discarded” is
not an ambiguous term, and “EPA therefore has no discretion
to ‘reasonably’ construe the term to exclude hazardous-waste-
derived fuels from regulation.” Natural Resources Defense
Council v. EPA, No. 98-1379, slip op. at 16.

     In other words, “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’”—
and not the EPA’s right and responsibility under Section
6924(q) to regulate facilities producing fuels from materials
that are unquestionably “hazardous waste” otherwise subject
to RCRA. Horsehead, 16 F.3d at 1263.

     Indeed, as we explain today in Natural Resources
Defense Council v. EPA, No. 98-1379, while AMC I focused
only on Congress’s concern with the burning of commercial
chemicals as fuels when it passed Section 6924(q), that
Section’s compass is “far broader than that.” See slip op. at
16 n. 7. In amending the statute by adding this provision,
Congress made clear that “[h]azardous 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 a fuel.” Id.

     In addition, AMC I involved the reuse or recycling of
materials that are “reinsert[ed] into the refining process along
with the normal crude feedstock.” AMC I, 824 F.2d at 1180.
Syngas, by contrast, is produced by taking certain secondary
materials left over from the petroleum refining process and
putting them not back into the normal refining process, but
                                22
into a gasification system. That distinct fuel production
process falls squarely within Section 6924(q)’s plain text.

     Accordingly, just as we concluded in Natural Resources
Defense Council v. EPA, No. 98-1379, we hold here that
Congress meant in Section 6924(q) what it said. See slip op.
at 14-17. The EPA cannot carve out of RCRA one of the very
activities that Congress commanded it to regulate. Section
6924(q)’s plain text deprives the EPA of the authority to
remove oil-bearing secondary hazardous wastes from
RCRA’s reach when, through gasification, those materials are
used to produce a fuel. 3

                             *****

     In closing, we note that Section 6924(q) does not, by its
terms, require the EPA to subject all hazardous wastes used to
produce a fuel to the full panoply of RCRA regulation.
Instead, Congress directed the EPA to promulgate those
standards that the EPA reasonably determines “may be
necessary to protect human health and the environment.” 42
U.S.C. § 6924(q). The EPA thus retains the ability to regulate
such wastes in a manner that promotes goals like efficient
resource recovery and reuse as long as it also comports with
Congress’s protective command. The Gasification Exclusion
Rule’s wholesale exemption of hazardous wastes used as fuel,
however, does not fit that bill. We accordingly hold that
Petitioners Sierra Club and Louisiana Network have standing;
their petitions for review were timely; and the Gasification

3
  Because we grant the Sierra Club and Louisiana Network petitions
on the ground that the regulation conflicts with the plain statutory
text, we need not address the Petitioners’ alternative argument that
EPA failed to provide adequate notice of the final rule, as required
by 5 U.S.C. § 553.
                             23
Exclusion Rule violates the plain statutory text of 42 U.S.C.
§ 6924(q).

     For the foregoing reasons, we deny the petition for
review in No. 08-1145 and grant the petitions for review in
Nos. 08-1144 and 12-1295. The Gasification Exclusion Rule
is vacated.

                                                 So ordered.
