216 F.3d 50 (D.C. Cir. 2000)
American Petroleum Institute, et al.,Petitionersv.United States Environmental Protection Agency, RespondentChemical Manufacturers Association, Intervenor
Nos. 94-1683, 94-1684, 94-1686, 98-1494, 98-1506, 98-1507, 98-1514
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 30, 2000Decided June 27, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petitions for Review of Orders of the Environmental Protection Agency
Michael W. Steinberg and Thomas Sayre Llewellyn argued  the causes for petitioners American Petroleum Institute, et al.
With them on the briefs were G. William Frick, Ralph J.  Colleli, Jr., Joshua D. Sarnoff, David F. Zoll, Ronald A.  Shipley, Christopher H. Marraro and John W. Kampman. Hunter L. Prillaman, David B. Graham and Judith A.  Wenker entered appearances.
David Frederick and David R. Case argued the causes and  filed the briefs for petitioners Louisiana Environmental Action Network, et al.  Richard W. Lowerre entered an appearance.
Steven E. Silverman, Attorney, Environmental Protection  Agency, Patricia R. McCubbin, Attorney, and Martin F.  McDermott, Attorneys, U.S. Department of Justice, argued  the causes for respondent.  With them on the brief were Lois  J. Schiffer, Assistant Attorney General, David J. Kaplan and  Alan Birnbaum, Attorneys, and Alan H. Carpien, Attorney,  Environmental Protection Agency.  Christopher S. Vaden,  Attorney, U.S. Department of Justice, entered an appearance.
Ralph J. Colleli, Jr. argued the cause for Intervenor American Petroleum Institute.  With him on the brief were G.  William Frick and Thomas S. Llewellyn.  David F. Zoll and  Ronald A. Shipley entered appearances.
Before:  Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed PER CURIAM.*

PER CURIAM:

1
Two sets of petitioners challenge regulations of the United States Environmental Protection Agency  ("EPA") promulgated under the Resource Conservation and  Recovery Act ("RCRA"), 42 U.S.C.  6901 et seq. (1994).  The  EPA rulemaking at issue concerned regulating several secondary materials generated by the petroleum refining and  petrochemical industries as "solid waste" and "hazardous  waste."


2
Industry petitioners, American Petroleum Institute  ("API"), the Chemical Manufacturers Association ("CMA"),  and Texaco, Inc. (collectively, "industry petitioners"), assert  two main categories of challenges.  The first category challenges EPA's regulation under RCRA of two materials as  solid waste.  The second challenges EPA's listing of certain  refinery wastes as hazardous waste.  Environmental petitioners, Louisiana Environmental Action Network ("LEAN"),  Communities for a Better Environment of California  ("CBE"), the Sierra Club, and the Environmental Technology  Council ("ETC") (collectively, "environmental petitioners"),  challenge EPA's failure to list certain items and further  allege an Administrative Procedure Act ("APA"), 5 U.S.C.   551 et seq. (1994), notice and comment claim.


3
We deny the petition of the industry petitioners on all  counts but one, on which we vacate and remand to EPA for  further proceedings.  Finding that we lack jurisdiction to  consider the claims of environmental petitioners, we dismiss  their petition.


4
I. Industry Petitioners' Challenges to EPA's Regulation  of Recovered Oil and Wastewaters as Solid Waste

A. Statutory Framework

5
RCRA is a comprehensive environmental statute granting  EPA authority to regulate solid and hazardous wastes.  "Solid wastes" are governed by Subtitle D of RCRA, and are  generally subject to less stringent management standards  than "hazardous wastes" which are regulated under Subtitle  C. For purposes of RCRA, Congress defined solid waste as  follows:


6
The term "solid waste" means 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, orcontained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities....


7
42 U.S.C.  6903(27).


8
In pursuit of its congressionally conferred duty and authority to regulate solid waste under RCRA, the EPA has  adopted regulations defining solid waste for purposes of its  hazardous waste regulations:  "A solid waste is any discarded  material," 40 C.F.R.  261.2(a)(1) (1999), subject to a number  of exclusions enumerated in  261.4(a) and case-by-case variances under §§ 260.30 and 260.31.  The term "discarded  material" for purposes of the regulation means any material  which is abandoned, recycled, or considered inherently wastelike.  40 C.F.R.  261.2(a)(2).


9
In 1994 and 1998 rulemakings in pursuit of its RCRA  obligations, the EPA examined the production processes of  the petroleum refining industry.  As pertinent to the issue  before us, EPA considered whether to exclude from the  definition of solid waste two secondary materials:  oil-bearing  wastewaters generated by the petroleum refining industry  and recovered oil produced by the petrochemical manufacturing industry.  See Hazardous Waste Management System,  Identification and Listing of Hazardous Waste;  Petroleum  Refining Process Wastes;  Land Disposal Restrictions for  Newly Identified Wastes;  and CERCLA Hazardous Substance Designation and Reportable Quantities, 63 Fed. Reg.  42,110 (1998) ("Final Rule");  Hazardous Waste Management  System, Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes;  Land Disposal Restrictions for Newly Identified Wastes;  and CERCLA Hazardous  Substance Designation and Reportable Quantities, 60 Fed.  Reg. 57,747 (1995) ("Proposed Rule");  Identification and  Listing of Hazardous Waste;  Amendments to Definition of  Solid Waste, 59 Fed. Reg. 38,536 (1994) ("1994 Rule").  EPA  determined that oil-bearing wastewaters are solid waste for  purposes of RCRA regulation, and that recovered oil from  petrochemical facilities is excluded from the definition of solid  waste only when specified conditions are met.  See Proposed  Rule, 60 Fed. Reg. at 57,755/3-57,756/1;  Final Rule, 63 Fed. Reg. at 42,128-30;  40 C.F.R.  261.4(a)(12), (18).  Industry  petitioners challenge these conclusions.

B. Oil-Bearing Wastewaters

10
In petroleum refining, impurities are removed and usable  hydrocarbon fractions are isolated from crude oil feed stock. See Final Rule, 63 Fed. Reg. at 42,113/3-42,115/1, 42,121/2.Large quantities of water are used, and the resulting wastewaters contain a small percentage of residual oil.  These "oil bearing  wastewaters" are destined for ultimate discharge, but  only after a three-step treatment process is first applied. The first phase of treatment, known as "primary treatment,"  removes certain materials including the oil.  This phase has  at least two beneficial consequences:  (1) it meets a Clean  Water Act requirement that refineries remove oil from their  wastewater, and (2) it allows refineries to recover a not  insignificant quantity of oil (up to 1,000 barrels a day across  the industry) which is cycled back into the refinery production process.


11
Industry petitioners and EPA disagree over when these  wastewaters become discarded for purposes of the solid waste  definition.  While no one disputes that discard has certainly  occurred by the time the wastewaters move into the later  phases of treatment, the question is whether discard happens  before primary treatment, allowing regulation of wastewater  as solid waste at that point, or not until primary treatment is  complete and oil has been recovered for further processing.


12
EPA's initial proposal excluded oil-bearing wastewaters. See 1994 Rule, 59 Fed. Reg. at 38,540/3 (citing Identification  and Listing of Hazardous Waste;  Amendments to Definition  of Solid Waste, 53 Fed. Reg. 519, 525-26 (1988)).  However, it  changed its mind in 1994 and concluded that even before the  oil is recovered in primary treatment, "the wastewaters are  discarded materials and hence solid wastes subject to regulation under RCRA."  59 Fed. Reg. 38,540/1.  EPA stated:"Primary wastewater treatment operations exist to treat  plant wastewaters."  Id. at 38,539/3.  It noted that the percentage of oil in the wastewater is very small and "not significant in the context of a refinery's overall production  activities," and that the Clean Water Act mandates such  treatment.  Id.;  see also 40 C.F.R. Part 419;  API v. EPA,  540 F.2d 1023 (10th Cir. 1976) (discussing water discharge  regulations).  For these stated reasons, EPA concluded that  "[c]learly, wastewater treatment is the main purpose of the  systems in question, and any oil recovery is of secondary  import."  59 Fed Reg. at 38,539/3.


13
EPA restated its conclusion in its subsequent 1995 Proposed Rule, 60 Fed. Reg. at 57,755/3, and retained it in the  Final Rule.  See 63 Fed. Reg. at 42,184 (codified at 40 C.F.R.   261.4(a)(12)(ii)).  The actual regulation does not mention  wastewaters.  But by not being excluded, all wastewaters  including oil-bearing wastewaters are considered to fall under  EPA's general regulatory definition of solid waste.


14
Whether a material has been "discarded," subjecting it to  RCRA regulation, is a question we have considered in four  prior cases.  First, in American Mining Congress v. EPA,  824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"), we held that the  term "discarded" conforms to its plain meaning.  Id. at 1193.Thus, items that are "disposed of, abandoned, or thrown  away" are discarded.  Id.  AMC I concluded that "in-process  secondary materials," that is, materials "destined for immediate reuse in another phase of [an] industry's ongoing production process," are not discarded under RCRA.  Id. at 1185,  1193.  We recently reaffirmed that holding in Association of  Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir.  2000), where we reiterated that EPA cannot regulate as solid  waste secondary materials "destined for reuse as part of a  continuous industrial process" that is therefore "not abandoned or thrown away."  Id. at 1056.


15
At the other end of the spectrum we have held that a  material that has been "indisputably 'discarded' " can, of  course, be subjected to regulation as solid waste.  API v.  EPA, 906 F.2d 729, 741 (1990).  Where a material was  "delivered to [a metals reclamation] facility not as part of an  'ongoing manufacturing or industrial process' within 'the generating industry,' but as part of a mandatory waste treatment plan prescribed by EPA," we concluded that a material was  not precluded from being classified by EPA as a solid waste.Id.;  see also United States v. Ilco, Inc., 996 F.2d 1126, 1132  (11th Cir. 1993) ("Previously discarded solid waste, although  it may at some point be recycled, nonetheless remains solid  waste.").


16
A material somewhere between the extremes of ongoing  production and indisputable discard was addressed in American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990)  ("AMC II").  Industry petitioners claimed that sludges from  wastewater stored in surface impoundments, which "may"  later be reclaimed for treatment, could not be regulated.  Id.  at 1186.  We disagreed and deferred to EPA's determination  that such sludges have been discarded.  Nothing, we reasoned, prevents EPA from regulating as "solid wastes" materials managed in land disposal units which are no longer part  of an industrial process.  See id. at 1186-87;  see also Owen  Elec. Steel Co. of S.C., Inc. v. Browner, 37 F.3d 146, 150 (4th  Cir. 1994) (slag recycled after sitting for up to six months was  reasonably classified as solid waste).


17
Industry petitioners rely primarily on AMC I.  They first  contend that the oil-bearing wastewaters at issue in this case  cannot be classified as discarded because AMC I already said  they are not.  We disagree.  True, API's brief in AMC I  characterized oil-bearing wastewaters as part of an ongoing  industrial process.  Our opinion in AMC I, however, did not  decide this question.  We only held that in-process secondary  materials are not "discarded" so that EPA could not regulate  them;  we did not address the discard status of any of the  particular materials discussed in the briefs.  See AMC I, 824  F.2d at 1181 (describing the petroleum refining process);  cf.  Battery Recyclers, 208 F.3d at 1056 (holding that "all we can  say with certainty is that at least some of the secondary  material EPA seeks to regulate" is not discarded).


18
Industry petitioners also contend that even if AMC I did  not decide the issue, oil-bearing waste waters cannot be regulated because they are (as claimed in API's AMC I brief)  unquestionably in-process materials not yet discarded.  Alternately, even if the status of oil-bearing waste waters is not so  plain, petitioners assert that EPA's conclusion is arbitrary  and capricious because it is not based on reasoned decision making.  See, e.g., Motor Vehicle Mfrs. Ass'n of the United  States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43  (1983) (agency must "articulate a satisfactory explanation for  its action including a rational connection between the facts  found and the choice made") (internal quotation marks omitted).  Petitioners emphasize that primary treatment yields  valuable oil that is reinserted into the refining processes in a  continuous operation.  They also claim that oil recovery operations began long before Clean Water Act regulations required it.  In sum, they contend that oil recovery in primary  treatment is a part of in-process oil production.


19
At bottom, the parties disagree over the proper characterization of primary treatment.  Is it simply a step in the act of  discarding?  Or is it the last step in a production process  before discard?  Our prior cases have not had to draw a line  for deciding when discard has occurred.  While the issue was  closest in AMC II, the sludges in dispute there were described as being stored in surface impoundments "that may at  some time in the future be reclaimed."  AMC II, 907 F.2d at  1186.  We concluded that EPA's interpretation of "discarded"  as including the sludges was reasonable and entitled to  deference under Chevron U.S.A. Inc. v. Natural Resources  Defense Council, Inc., 467 U.S. 837, 842-45 (1984).  See AMC  II, 907 F.2d at 1186-87;  Battery Recyclers, 208 F.3d at 1055;cf. Owen Elec., 37 F.3d at 150.  We did not, however, focus on  whether EPA's reasoning to reach that result was arbitrary  or capricious under the APA.  See State Farm, 463 U.S. at  43;  5 U.S.C.  706(2)(A) (1994).  The second step of Chevron  analysis and State Farm arbitrary and capricious review  overlap, but are not identical.  See Michigan v. EPA, 213 F.3d 663, ___, 2000 WL 180650, *17 (D.C. Cir. 2000);  Arent v.  Shalala, 70 F.3d 610, 614-16 (D.C. Cir. 1995).


20
It may be permissible for EPA to determine that the  predominant purpose of primary treatment is discard.  Legal  abandonment of property is premised on determining the  intent to abandon, which requires an inquiry into facts and circumstances.  See Baglin v. Cusenier Co., 221 U.S. 580,  597-98 (1911);  International Finance Corp. v. Jawish, 71  F.2d 985, 986 (D.C. Cir. 1934);  see also Katsaris v. United  States, 684 F.2d 758, 761-62 (11th Cir. 1982) (collecting  cases).  Where an industrial by-product may be characterized  as discarded or "in process" material, EPA's choice of characterization is entitled to deference.  See AMC II, 907 F.2d at  1186.  However, the record must reflect that EPA engaged in  reasoned decisionmaking to decide which characterization is  appropriate.  The record in this case is deficient in that  regard.  EPA has noted two purposes of primary treatment  and concludes, "[c]learly, wastewater treatment is the main  purpose."  1994 Rule, 59 Fed. Reg. 38,539/3.  As English  teachers have long taught, a conclusion is not "clear" or  "obvious" merely because one says so.


21
EPA points out that primary treatment only recovers a  small amount of oil relative to the entire output of a typical  refining facility.  However, the oil is still valuable and usable,  so that reason alone cannot show discard.  The rock of a  diamond mine may only contain a tiny portion of precious  carbon, but that is enough to keep miners busy.  In the  refining industry, the net amount of oil recovered may reach  1,000 barrels a day.  It is plausible to claim, as industry  petitioners do, that refiners engage in primary treatment first  and foremost to recover this usable resource.  At the very  least, EPA cannot merely rely on the small relative amount of  oil recovered from primary treatment without further explanation.


22
EPA also notes that the Clean Water Act requires primary  treatment before discharge.  If refiners got nothing from  primary treatment, this might be a compelling rationale because it would be hard to explain why, other than to discard,  refiners would engage in a costly treatment activity with no  economic benefits.  See API, 906 F.2d at 741.  However,  petitioners claim they would engage in primary treatment  regardless of the treatment standards in order to recover the  desired oil.  EPA does not explain why this possibly valid  motivation is not compelling.  EPA makes no attempt to  balance the costs and benefits of primary treatment, or otherwise to explain why the Clean Water Act requirements  are the real motivation behind primary treatment.  Indeed,  without further explanation, it is not inherently certain why a  substance is definitively "discarded" if its possessor is continuing to process it, even though the possessor's decision to  continue processing may have been influenced, or even predominantly motivated, by some external factor.  Otherwise  put, it is not so obvious as EPA would have us hold that if the  industry petitioners conceded that their overriding motivation  in further processing the wastewaters was compliance with  Clean Water Act regulations that they would then conclusively be discarding the material in question even while further  processing it.  If the non-Clean Water Act benefits of the  initial treatment are enough to justify firms' incurring the  costs (petitioners point to material in the record that may  support such a proposition), the EPA would have to reconcile  that fact with any conclusion that the Clean Water Act  purpose was primary.


23
In short, EPA has not set forth why it has concluded that  the compliance motivation predominates over the reclamation  motivation.  Perhaps equally importantly it has not explained  why that conclusion, even if validly reached, compels the  further conclusion that the wastewater has been discarded.Therefore, because the agency has failed to provide a rational  explanation for its decision, we hold the decision to be arbitrary and capricious.  See State Farm, 463 U.S. at 46-57;Illinois Public Telecomms. Ass'n v. FCC, 117 F.3d 555, 564  (D.C. Cir. 1997).  We therefore vacate the portion of EPA's  decision declining to exclude oil-bearing wastewaters from the  statutory definition of solid waste, and remand for further  proceedings.  We do not suggest any particular result on  remand, only a reasoned one demonstrating when discard  occurs if EPA wishes to assert jurisdiction.

C. Petrochemical Recovered Oil

24
Unlike petroleum refiners, petrochemical manufacturers do  not refine crude oil but instead use refined petroleum products and other feed stocks to produce petrochemical products such as organic chemicals.  These production processes can  produce residual oil, known as "petrochemical recovered oil."Final Rule, 63 Fed. Reg. at 42,114 n.2.  This oil can be  inserted into the petroleum refining process.


25
EPA crafted a regulation excluding petrochemical recovered oil from the definition of solid waste, provided that  certain conditions are met.  These conditions are designed to  disqualify from the exclusion oil that contains non-refinable  hazardous materials.  See id. at 42,129-30.  EPA was concerned that if additional unneeded materials present in petrochemical recovered oil were covered by the exclusion, it would  allow for the improper disposal of waste materials through  adulteration.  Such activity is called "sham recycling."  See  United States v. Marine Shale Processors, 81 F.3d 1361, 1365  (5th Cir. 1996).  Simply put, if extra materials are added to  petrochemical recovered oil that provide no benefit to the  industrial process, EPA finds this to be an act of discard  under the guise of recycling.  Although EPA apparently does  not know if sham recycling actually occurs in this industry, it  was concerned because some of the petrochemical recovered  oil samples it tested were contaminated with chlorinated or  other halogenated materials that were unexpected.


26
The EPA rule promulgated excludes from its solid waste  definition "petrochemical recovered oil ... to be inserted into  the petroleum refining process ... along with normal petroleum refinery process streams, provided [that] [t]he oil is  hazardous only because it exhibits the characteristic of ignitability ... and/or toxicity for benzene...."  Final Rule, 63  Fed. Reg. 42,185 (codified at 40 C.F.R.  261.4(a)(18)(i)).EPA explained that the ignitability and benzene toxicity  properties are typical of or very similar to basic petroleum  refining feedstocks.  See Final Rule, 63 Fed. Reg. at 42,130/1.Thus, the exclusion does not cover petrochemical recovered oil that is hazardous due to the presence of other hazardous  materials.  The exclusion also contains other conditions  meant to help curb sham recycling, such as when petrochemical recovered oil is "speculatively accumulated before being  recycled into the petroleum refining process."  Id.


27
Industry petitioner CMA makes one argument, premised  solely on Chevron step one.  CMA argues that EPA has no  authority to regulate any petrochemical recovered oil under  any circumstances because such materials are not "discarded."  The reasonableness of the conditions adopted by EPA  as part of its exclusions are not challenged because, in CMA's  opinion, no such conditions may be imposed.


28
This Chevron plain meaning argument fails because EPA is  correct that abandoning a material is discarding even if  labeled recycling.  EPA is not violating AMC I's definition of  discard.  To the contrary, the premise of EPA's rule is sound  precisely because it is meant to regulate only discarded  materials.  EPA can regulate material "discarded" through  sham recycling even though it cannot regulate under RCRA  materials that are not discarded.  Speculatively accumulated  recovered oil is a clear example of a condition imposed under  the exclusion which shows that some petrochemical recovered  oil can indeed be considered as discarded.  Even if, assuming  for the sake of argument, the rule's many conditions might  incidentally regulate oil containing chemicals not caused by  sham recycling (and therefore not discarded), that is beyond  the claim we consider today.  Presumably a refiner in a  specific case could attempt to show that additional chemicals  in the oil are not a product of adulteration, not discarded, and  outside EPA's authority to regulate such material under  RCRA.  We therefore deny CMA's petition as to petrochemical recovered oil.


29
II. Industry Petitioners' Challenges to Listing  of Refinery Wastes as Hazardous


30
Industry petitioners allege that the listed refinery residuals  do not pose a "substantial present or potential hazard to  human health or the environment," RCRA  1004(5)(B), 42  U.S.C.  6903(5)(B);  40 C.F.R.  261.11(a)(3) (emphasis added), and thus were improperly listed as "hazardous waste."Their argument is based on EPA's explicit recognition that


31
for some of the wastestreams at issue "population risk" is  "near zero."  Notice of Proposed Rulemaking:  Hazardous  Waste Management System, 60 Fed. Reg. 57,747, 57,789/2  (1995).  Our disposition of this claim turns on the relationship  between "individual risk," which EPA regarded as substantial, and "population risk," which for some wastestreams it  acknowledged as negligible.  Until a letter filed after oral  argument, petitioners did not attack the EPA's characterization of the individual risks, and thus we have no occasion to  consider whether the agency lawfully characterized such risks  as substantial.


32
Before considering this claim, we pause for a brief explication of these concepts.  "Population risk" is, as its name  suggests, the risk of the population at large, generally calculated as an "upper bound" estimate of risk for the population  overall.  It is commonly measured in terms of health effects  cases over a given time period (e.g., cancer deaths caused per  year).  Draft Report:  Assessments of Risks From the Management of Petroleum Refining Wastes:  Background Document 2-25 (October 1995) ("Draft Report").  "Individual risk"  is calculated variously as a "bounding estimate," a "central  tendency estimate," or a "high-end estimate," for a member  of a particular segment of the population.  Id. at 2-33.  (For  high-end estimates, the agency set the two most sensitive  parameters at the high end (90th percentile point on the  distribution), and set the others at their central tendency. Final Rule, 63 Fed. Reg. at 42,117/2, 42,120 (Table IV-2)  (1998).)  Unlike population risk, individual risk is commonly  measured in terms of lifetime risk.  As the term population  risk seems to imply, it is an aggregate, calculated either by  "summing the estimated individual risk over all of the individuals in the population," Draft Report at 2-34, or by estimating methods aimed at the same goal, id.  EPA counsel  confirmed at oral argument that population risk aggregates  individual risk.


33
Suppose, for example, that a particular waste poses an  individual 1-in-100,000 lifetime risk of death from cancer to  100 people.  The estimated annual population risk is 1 in  100,000 divided by 70, since the "individual" risk estimate assumes a 70-year life span, and multiplied by 100, to reflect  the 100 persons exposed;  thus the estimated additional annual cancer incidence for this population is 100 X 1/7,000,000 =  1.4 X 10-5 (or, 1.4 cases every 100,000 years).  Of course any  other cancer cases estimated to result from exposure to the  waste across the overall population would be added in to  produce the complete population risk estimate.


34
According to established EPA practice, waste streams with  "high-end individual cancer-risk level[s]" of 1 in 100,000 lifetimes or higher "generally are considered initial candidates"  for listing, and those that pose a risk of at least 1 in 10,000  lifetimes are "presumptively assumed" to merit listing.  Notice of Proposed Rulemaking:  Hazardous Waste Management  System, 59 Fed. Reg. 66,072, 66,077 (1994).  EPA found that  the risks posed by the refinery residuals generally met at  least the candidate level for listing.  See Final Rule, 63 Fed.  Reg. at 42,150-55.  But in the case of one subcategory of  clarified slurry oil ("CSO") sediment, namely land filled sediments, EPA appears to acknowledge that high-end individual  risk was actually as low as 4 X 10-6, i.e., 4 cancer deaths in  one million lifetimes of exposure, id. at 42,152/2 (expressed as  "4E-6"), and "that the incremental [population] risk in terms  of cancer cases avoided would be near zero."  Notice of  Proposed Rulemaking:  Hazardous Waste Management System, 60 Fed. Reg. 57,747, 57,789 (1995).  Petitioners argue  that EPA's failure to consider the "near zero" population risk,  which by their calculations based on EPA's figures ranged  from 0.3 cancer cases in 10,000 years to 0.7 cases in 1 million  years, API's Initial Br. at 34, rendered its listing unlawful.  5  U.S.C.  706(2)(A).1


35
Were population risk a factor that EPA had to weigh with  and against individual risk to determine whether a particular  hazard was "substantial," the Agency would have to provide a  reason for ignoring it in this instance.  Dithiocarbamate Task  Force v. EPA, 98 F.3d 1394, 1398-99 (D.C. Cir. 1996).  But  neither the statute nor the regulation identifies population  risk per se as one of the mandatory factors that the Agency  must consider.  See 42 U.S.C.  6921(a);  40 C.F.R.   261.11(a)(3).  Under EPA's regulations, the Administrator  must "consider[ ]" "[t]he nature and severity of the human  health and environmental damage that has occurred" from  mismanagement of the waste, 40 C.F.R.  261.11(a)(3)(ix);but this does not necessarily imply that substantial individual  risk alone, without high population risk, cannot be enough to  constitute a "substantial ... hazard."


36
Much of what EPA has written could be taken as requiring  substantial population risk.  Thus, here it observed, "Population risk is only one of many factors to be considered," Final  Rule, 63 Fed. Reg. at 42,138/3, arguably suggesting that it  always "consider[s]" it, so that zero or near-zero population  risk would exonerate, or tend to exonerate, a waste stream. In context,however, we believe we may discern the Agency's  path to its conclusion that individual risk alone may be  enough to justify a hazardous waste listing, regardless of  population risk.  Motor Vehicle Mfrs. Ass'n of the United  States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43  (1983).  EPA states, for instance, that it "does not believe  that it is appropriate to allow contamination from waste  management units to cause substantial risk to nearby residents simply because there are few wells in the immediate  area" and that its "decision to list these wastes is based  primarily on the concern over risks to those individuals who  are significantly exposed, even if there are relatively few of  them."  Final Rule, 63 Fed. Reg. at 42,138/3 (emphasis  added).  These justifications are consistent with its 1995  Guidance for Risk Characterization, which states that when  small populations are exposed (and thus population risk is  low), "individual risk estimates will usually be a more meaningful parameter for decision-makers."  Id.  Moreover, EPA cited instances (primarily in the Superfund context) in which,  consistent with this reasoning, it "rejected using population  risk as the point of departure" and took action because of the  high individual risk even though population risk was low.  Id.  at 42,139/1.  We thus read EPA as saying--in consonance  with both the governing statute and regulation--that it will  regulate a waste that poses a substantial risk to highly  exposed individuals, even if that risk poses a relatively small  risk to the population at large.


37
Petitioners also argue that if RCRA is read to allow EPA  to list wastes that pose "near zero" population risk without  establishing a stopping point, then the statute effectuates a  violation of the nondelegation principle.  See American  Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir.  1999) (per curiam), modified on reh'g, 195 F.3d 4 (D.C. Cir.  1999), cert. granted, 120 S. Ct. 2003 (May 22, 2000).  But  petitioners failed to attack EPA's judgment that the individual risks presented here alone constituted a "substantial"  hazard;  rather they assumed the necessity of a population  risk factor, and then attacked any notion of population risk  that could slide so low.  But in the EPA view population risk  drops out of the calculation altogether under the facts presented, so we have no occasion to review petitioners' claim  that the "population risk" factor is unduly elastic.


38
Industry petitioners also allege that even if the listings are  valid, they nonetheless are overbroad and should be vacated.Several of these contentions, we think, are not only adequately answered in the EPA's brief but are also too fact-specific to  justify exposition in a published opinion.  The other two call  for explicit analysis.


39
First, petitioners argue that EPA's listing of CSO sediment  is overbroad.  Although according to petitioners "CSO is  often blended, in various proportions, with other petroleum  products," EPA sampled only sediment from CSO stored by  itself.  API's Initial Br. at 46.  In defense of its action EPA  appeals to the well-established "mixture rule," providing that  the mixture of a solid waste and a listed hazardous waste is  itself a hazardous waste.  40 C.F.R.  261.3(a)(2)(iv).


40
Although EPA's brief reads as if it viewed the decision here  as a simple application of the mixture rule, industry petitioners point out that, strictly speaking, this is not so:  sediment  generated from a mixture of CSO and other refinery products  is not itself the mixture of CSO sediment with a solid waste.To put it more generally, to say that any mixture of hazardous waste X and solid waste Y (the latter being any solid  waste whatever) is a hazardous waste--as the mixture rule  does--is not exactly the same as saying that where the  sediment of X is a hazardous waste, the sediment of X and Y  (Y being any substance whatever) is a hazardous waste.Thus, we think EPA in fact extended its mixture rule, or  developed a corollary.  But petitioners have pointed us to  nothing in the record or in common sense that would contradict EPA's belief that the sediment generated from a CSO  blend would contain CSO sediment.  See Final Rule, 63 Fed.  Reg. at 42,153/2 (asserting that it would be likely to generate  CSO sediment).  On this record, then, we see nothing to  upset the EPA decision.


41
Second, industry petitioners argue that EPA's listing of  guard beds was arbitrary and capricious.  These are related  to hydrotreating and hydrorefining catalysts, which EPA  decided to list, and to hydrocracking catalysts, which it did  not list.  EPA acknowledged that there is no "universally  established or accepted" way of distinguishing among these  three processes, although they can be viewed as differing in  terms of "degrees of severity of operating conditions and  conversion of larger hydrocarbons to smaller molecules  ('cracking'), and/or feeds."  Final Rule, 63 Fed. Reg. at  42,155/1.  The proposed regulations defined hydrorefining as  including "processes where 10 percent of the feed or less is  reduced in molecular size," and hydrocracking as including  "processes where 50 percent of the feed or more is reduced in  molecular size."  Id. at 42,155/2.  EPA rejected this proposal,  determining that the "simplest way" to distinguish hydrocracking catalysts from hydrotreating and hydrorefining catalysts was to rely on the categories used by the DOE's  Petroleum Supply Annual, under which refineries annually  submit data on operating capacity for catalytic hydrocracking and catalytic hydrotreating.  Id. at 42,155/2-3.  "[I]f a refinery has been classifying its hydroprocessor as a catalytic  hydrocracker for the purposes of the DOE's Form EIA-820,  spent catalyst from this unit would not be covered by K171 or  K172," and conversely for hydrotreaters.  Id. at 42,155/3.


42
EPA, however, excepted "guard beds" from this criterion,  ruling that their wastes should be listed regardless of the  refinery's classification.  Guard beds "are used to extend the  life of the downstream catalytic bed (e.g., reformer, hydrocracker, isomerization reactor) by removing sulfur, oxygen,  nitrogen, and/or heavy metals."  Id. at 42,156/1.  EPA provided little by way of explanation for its classification, except  to say that it "agrees [with the catalyst reclaimers] that these  pretreatment units, or 'guard units,' should be covered under  the listing descriptions in today's rule."  Id.


43
EPA's description of guard beds as "desulfurization pretreaters," id., however, shows that it viewed them as fitting  squarely within the DOE definition of catalytic hydrotreating,  which includes "desulfurization [and] removal of substances  (e.g., nitrogen compounds) that deactivate catalysts."  Id. at  42,155/3.  Thus, if EPA was correct in using the DOE classifications generally, a proposition petitioners do not contest, and  if the reason for using those classifications here pointed  toward listing guard beds, it was reasonable for EPA to do  so--even though, for reasons that are unclear, guard beds  end up otherwise classified for DOE.


44
This is true even if, as industry petitioners commented  below and now argue, guard beds may involve some hydrocracking in reducing the feedstock molecular size.  EPA  rejected a reliance on molecular conversion rates in favor  (implicitly) of the processes' roles in removing contaminants; accordingly it could permissibly classify guard beds with the  other listed processes.


45
III. Environmental Petitioners' Challenges  to EPA's Non-Listing Determinations,  and Notice and Comment Claim


46
Environmental petitioners, see supra at 3, challenge EPA's  decisions not to:  (1) classify unleaded gas storage tank sediment ("UGSTS") as a hazardous waste;  (2) exempt otherwise  "hazardous" wastes from being classified as such if they are  used in the petroleum coking process, on the basis of inadequate notice and opportunity to comment on the exemption; and (3) classify coke product and fines inadvertently released  from saleable piles of coke as hazardous waste.  While EPA  joined issue on the merits of the environmental petitioners'  first two contentions, API, as intervenor with respect to their  petition, contends that they lack standing.2  Essentially, API  contends that the environmental petitioners fail to link the  harms of which their members complain with the regulatory  actions that they wish EPA to take.  API and EPA also  contend that the court lacks jurisdiction over the environmental petitioners' third contention, regarding coke product and  fines, because EPA's decision not to list these substances is a  deferral of rulemaking, rather than a final rule.  We hold that  the environmental petitioners have failed to establish that  they have standing to raise their contentions with respect to  UGSTS and the coking process exemption, and that EPA's  inaction on coke product and fines is not justiciable under the  Resource Conservation and Recovery Act ("RCRA"), 42  U.S.C.  7006(a).  Accordingly, because the court lacks jurisdiction, we dismiss the environmental petitioners' petition.

A. UGSTS

47
The environmental petitioners challenge EPA's decision not  to list as hazardous waste the sediment found in discarded  storage tanks that once held unleaded gasoline, maintaining  in general terms that EPA's failure to list this waste as  hazardous has placed its members in harm's way.  For  Article III standing, a petitioner must show that "(1) it has  suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;  (2) the injury is fairly traceable to the challenged action of the defendant;  and (3) it is likely, as opposed to merely  speculative, that the injury will be redressed by a favorable  decision."  Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 120 S. Ct. 693, 704 (2000) (citing Lujan  v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).  An  organization has standing to sue "on behalf of its members  when its members would otherwise have standing to sue in  their own right, the interests at stake are germane to the  organization's purpose, and neither the claim asserted nor the  relief requested requires the participation of individual members in the lawsuit."  Id. (citing Hunt v. Washington State  Apple Advertising Comm'n., 432 U.S. 333, 343 (1977)).


48
At issue is whether the environmental petitioners' evidence  demonstrates that EPA's alleged failings have caused a traceable "concrete and particularized" harm to their members  that is "actual or imminent".  In Louisiana Environmental  Action Network v. EPA, 172 F.3d 65 (D.C. Cir. 1999) ("LEAN  I"), the court reiterated that for purposes of standing a  petitioner need not establish the merits of a case, i.e., that  localized harm has in fact resulted from a federal rulemaking,  but rather must demonstrate that there is a "substantial  probability" that local conditions will be adversely affected,  and thus will harm members of the petitioner organization. LEAN I, 172 F.3d at 68 (citing Florida Audubon Society v.  Bentsen, 94 F.3d 658, 666 (D.C. Cir. 1996) (en banc)). In  LEAN I, petitioners alleged that their members would be  adversely affected by a federal rule permitting variances from  generally applicable treatment standards for waste prior to  landfill disposal.  At least three LEAN members lived near  the Carlyss landfill where most waste from the state of  Louisiana "would be 'land disposed' if excavated and treated. Under LEAN's theory, 'lower quality' (less treated) wastes  [would] be deposited in Carlyss" as a result of the variances. Id. at 67.  The court held that petitioners had standing:


49
Petitioners have noted that in the state of Louisiana there are over 100 inactive or abandoned hazardouswaste sites for which cleanup has already been found necessary, as well as about thirty RCRA facilities designated "high priority."  It is therefore all but certain that remediation activities will continue to occur apace.  Even if the variance-to-remediation ratio is fairly low, the amount of such activities creates a very "substantialprobability" that some variances will be granted, increasing risk to LEAN members near the Carlyss site.


50
Id. at 68 (citation omitted).


51
To establish their standing to challenge the non-listing of  UGSTS, environmental petitioners rely in part on two affidavits by Michelle McFaddin Atwell, an environmental regulatory affairs consultant.  Based on her review of the digital  database of the Texas Natural Resources Conservation Commission on industrial hazardous waste shipments, Atwell concluded that "tank bottoms" have been shipped from refineries  to a municipal landfill in Sinton, Texas, and that other "Type  I" municipal landfills throughout Texas have received "tank  bottoms" and "oily sludge waste," including landfills in Houston, Conroe, and Altair.  While Atwell never identifies unleaded gasoline tanks generating UGSTS, she explains that  standard listing codes preclude specific identification of "unleaded gasoline tanks";  generic codes such as "tank bottoms"  and "oily sludge waste" are employed, and encompass numerous wastes, including those generated by unleaded gasoline  tanks.  Atwell notes that while "Class I industrial, solid  waste" generally is supposed to be shipped to "a permitted,  Class I industrial waste landfill rather than a Type I, municipal landfill," exemptions from this rule are routinely granted  in Texas with respect to those industrial wastes not listed as  hazardous, such as UGSTS, and the state conservation commission "rarely if ever track[s] the volumes of waste that are  actually shipped to Type I landfills under these case-by-case  requests."


52
Although the environmental petitioners have identified  landfills that have a substantial probability of receiving such  shipments, see LEAN, 172 F.3d at 68, namely, Type I municipal landfills likely to receive wastes within categories that  include UGSTS, they have failed to establish either a substantial probability that the shipments to these identified landfills  contain UGSTS, or a link between such deposits and the  specific harms alleged by their members.  See, e.g., Laidlaw,  120 S. Ct. at 704;  Lujan, 504 U.S. at 560-61;  LEAN I, 172  F.3d at 68.  As to the former, environmental petitioners do  not present, for example, either expert opinion that these  landfills are of a class substantially likely to receive UGSTS filled shipments or an affidavit that the effects of UGSTS are  evident in the landfill's groundwater.  As to the latter, by  failing to connect the alleged injuries to UGSTS, the environmental petitioners also have failed to establish a likelihood  that the injuries alleged will be redressed by a favorable  decision.  See, e.g., Laidlaw, 120 S. Ct. at 704;  Lujan, 504  U.S. at 560-61.


53
Much of the environmental petitioners' standing problem  arises from the fact that their only affiant who lives in Sinton,  which Atwell identified as having a landfill likely to receive  UGSTS waste, has not shown that he was a member of a  petitioner organization at the time the petition challenging  the rule was filed, and his affidavit thus is legally insufficient.3See Petro-Chem. Processing v. EPA, 866 F.2d 433, 437 (D.C.  Cir. 1989).  The environmental petitioners' other affidavits,  involving general concerns about pollution at other locations,  do not cure the deficiency.


54
The affidavits of Tommy C. Douglas and H. C. Clark do  indicate that pollution in the Greens Bayou near Houston may  be linked to waste from the BFI-McCarty landfill in Houston,  which Atwell also identifies as among those landfills that  receive "tank bottoms" and "oil sludge waste," and that  Douglas no longer canoes in the Bayou as a result of his  concerns about pollution.  The problem lies, however, in the  vagueness of Clark's and Douglas' affidavits.  Clark, a geophysicist, states that public records at the Texas Natural Resources Conservation Commission show that contamination  in the groundwater under and from the BFI landfill in  Houston, including "petroleum related organic chemicals,"  has migrated into the Greens Bayou.  Douglas, a member of  a petitioner organization who lives in Houston, states that he  no longer canoes on the Greens Bayou because he and other  canoers have observed pollution in the Bayou, and because of  more general concerns about pollution in the Bayou, based in  part upon his knowledge that "there is a landfill just above  the location" where he once began a Bayou canoe trip.


55
While Clark provides a general link between Houston's  BFI landfill and the Greens Bayou, and Douglas suggests  generally that he is wary of Bayou pollution, neither affiant  traces the pollution of concern to UGSTS waste.  Clark  refers to "petroleum related organic chemicals," but he does  not suggest the current or imminent presence of specific  chemicals found in UGSTS waste, such as benzene, and none  of Clark's statements refer to specific wastes generated from  unleaded gasoline storage tanks.  Similarly, Douglas does not  describe the characteristics of the pollution that he has  observed, thus offering no basis to discern whether such  pollution, and hence his fears, were substantially likely to  have been derived, even in part, from unleaded gasoline  storage tanks.  Nor does Douglas suggest that his general  concerns about current or imminent Bayou pollution, including his knowledge that a landfill exists nearby, are linked to  UGSTS waste, or to wastes with features characteristic of  UGSTS.  While it is hardly necessary to present duplicative  evidence of reasonable fears that are fairly traceable, as  occurred in Friends of the Earth v. Gaston Copper Recycling  Corp., 204 F.3d 149, 153, 157-58, 161-62 (4th Cir. 2000) (en  banc), Douglas and Clark establish little more than that some  types of petroleum-related organic chemicals migrate from  BFI's Houston landfill to the Greens Bayou, and that Douglas  is concerned generally about pollution in the Bayou.  This is  insufficient to establish the environmental petitioners' standing because there is no showing that the specific EPA listing  determination that they seek would redress Douglas' concerns.  See, e.g., Laidlaw, 120 S. Ct. at 704;  Lujan, 504 U.S.  at 560-61.


56
Affiant W. H. Hilton is no more helpful to the environmental petitioners.  He states that he owns property in Wilmer  and in Ellis County and that municipal landfills "in Texas are  allowed to accept significant quantities of industrial wastes  including.... Class 1 wastes [such as UGSTS,] even if the  [municipal landfill's] permit does not so state," but he does  not indicate any current or imminent harm to himself.  To  the contrary, he states that he organized a successful effort to  halt plans for a new municipal waste landfill in Wilmer, and  that although at one time he was concerned that his Ellis  County property might be devalued in view of the potential  expansion of a local municipal landfill and existing groundwater contamination at that landfill, a political effort resulted in  a settlement to better protect the groundwater and his property.  Hilton also states that a Chevron storage tank leaked  on land adjacent to land belonging to his mother-in-law's  estate, of which Hilton is co-executor, and that wells had to be drilled on the estate's land to remedy the resulting water  contamination, but Hilton does not identify the circumstances  surrounding the leak, including whether it involved land filled  unleaded gasoline tanks or whether any harms suffered by  the estate are current or imminent, and hence remediable.4See, e.g., Laidlaw, 120 S. Ct. at 704;  Lujan, 504 U.S. at 56061.


57
Therefore, in addition to having failed to show the existence  or imminent existence of unleaded gasoline storage tanks in  the identified Type I landfills, the environmental petitioners fail to trace any harm to their members that flows from the  presence of UGSTS in waste streams from the landfills, and  thus to establish that their members' concerns are redressable through the listings sought by the environmental petitioners.  Because the environmental petitioners have not demonstrated an injury to any of their members that is both  traceable to EPA's non-listing decision and redressable by  this court, we dismiss the UGSTS portion of their petition for  lack of jurisdiction.  See Laidlaw, 120 S. Ct. at 704;  Lujan,  504 U.S. at 560-61;  LEAN I, 172 F.3d at 68.


58
B. Coking process exemption:  notice and comment claim


59
Similar deficiencies exist regarding the environmental petitioners' challenge under the notice and comment requirement  of the Administrative Procedure Act, 5 U.S.C.  553(b) & (c),  to EPA's decision not to regulate the solid wastes inserted  into the coking process, particularly those used in coke  quenching.5  EPA exempted from regulation those oil-bearing  hazardous secondary wastes inserted into the coking process,  noting in its final rule that such insertion generally occurs  during coke quenching rather than in the conventional coking  process.  The environmental petitioners challenge this exemption on the ground that EPA failed to provide adequate  notice and opportunity for comment because EPA focused on  coke quenching only after the initial notice and comment  period had closed.  We do not address this contention because the environmental petitioners have failed to establish a  substantial probability that their affiants will be exposed to  coke product quenched with hazardous materials.  See id.


60
The environmental petitioners base their standing to raise  this contention on the affidavits of Zelda Champion, Frank Gordon, and Dr. Charles Lamb.  The Champion and Gordon  affidavits show that members of petitioner organizations are  exposed to coke product generally, including "fines" (i.e., tiny  coke particles).  Both affiants state that they live near refineries or coke storage sites, have observed the storage and  transportation of coke at such sites, believe that such storage  and transportation is inadequately controlled, and have witnessed the release and windblown carriage of coke product  and fines from these sites.  They also state that they have  had such product and fines tested to confirm their identity as  petroleum coke dust.6 While these affidavits demonstrate  exposure by members of environmental petitioners' organizations to coke product and fines, neither Champion or Gordon  avers that the coke product and fines to which they are  exposed are generated by a coking process into which hazardous secondary materials are inserted, or are substantially  likely to be inserted.


61
As to the coking process itself, the affidavit of Dr. Charles  Lamb establishes only that the quenching of coke in waste  increases the toxic nature of such coke, and that "the dust  from such coke [would contain] increased levels of toxic  contaminants."  Attached to his affidavit is a report deriving  estimates of coke contamination levels that would be expected  from the use of specific refinery wastes in coke quenching.Dr. Lamb states that his study showed that "there are  refinery wastes which contain [polynuclear aromatics] that  would deposit on the surface of coke particles if they were  used for coke quenching," and concludes that "[i]t is logical  that these contaminants would disproportionately partition to  the finer coke particles ... [and that] coke dust emitted from  the coke mass would have even higher concentrations of contaminants than indicated previously."  But the report  notes that "[a] site specific risk assessment would require  actual data of emission rates and ambient air concentrations...."


62
In sum, the environmental petitioners' affidavits establish  at most that the insertion of hazardous wastes into the  coking process is potentially unhealthy and environmentally  unsound, and that coke product and fines from such a process are likewise unhealthy and environmentally unsound. What is missing is an averment that such insertion occurs, or  is substantially likely to occur, at the facilities that produce  the coke complained of by affiants Champion or Gordon.  It  is true that Dr. Lamb suggests that there is an economic  incentive for coke producers to avail themselves of EPA's  exemption and quench coke in hazardous waste, noting that  "[w]hile there may be some recovery of fuel values, the  overriding incentive for using refinery wastes for coke  quenching is to avoid the cost of waste disposal.  The coke  product can be significantly degraded by waste contaminants  added in the quenching step."  Such a generalized statement, however, is insufficient to demonstrate a substantial  probability that the specific coke product and fines to which  members of environmental petitioners' organizations are exposed will be quenched in hazardous waste.  While Laidlaw  may not require very much to constitute a concrete and  particularized harm, 120 S. Ct. at 706-07, more is required  than the vague statement proffered here.  In Florida Audubon, the court rejected the argument that a tax incentive to  produce a fuel derived from ethanol was substantially likely  to generate increased production of ethanol-producing crops,  given the "lengthy chain of conjecture," and thus to generate  increased agricultural pollution in the specific areas where  members of the environmental organization might face harm .Florida Audubon, 94 F.3d at 666.  While the causal chain in  Florida Audubon was significantly more attenuated than  here, Florida Audubon requires some showing of a substantial likelihood that a specific, relevant actor will avail itself of  a given incentive.  Id. at 669.  No such showing is made  here, as nothing is averred to the effect that hazardous wastes are present, and hence available to quench wastes, at  the specific facilities identified by affiants Champion and  Gordon, or otherwise 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.7Consequently, the environmental petitioners have failed to  link the practices complained of to alleged harms or imminent harms to their members, and thus have failed to establish that they have standing to raise their coke processing  exemption claim.  Accordingly, we dismiss the coking process portion of the environmental petitioners' petition for  lack of jurisdiction.  See Laidlaw, 120 S. Ct. at 704;  Lujan,  504 U.S. at 560-61;  LEAN I, 172 F.3d at 68.

C. Wind-blown Coke Product and Fines

63
Finally, the environmental petitioners seek review of EPA's  decision to defer a listing determination for coke product and  fines accidentally released into the air, or otherwise inadvertently released, from saleable piles of coke.  Unlike the  environmental petitioners' coke quenching challenge, their  airborne coke product and fines contention does not relate to  the manner in which coke is processed, or to the materials to  which the coke is exposed in processing.  Rather, this contention concerns the non-listing of those product and fines  released from saleable piles of coke, regardless of how the  coke is processed.  As noted in subpart (B), affiants Champion and Gordon establish a link between coke product and  fines emissions generally, and their exposure to such product  and fines.  Nonetheless, environmental petitioners face another jurisdictional obstacle:  the determination they challenge is a deferral of rule making, not a final rule.


64
Under RCRA  7006(a), the court has jurisdiction to review three types of actions by EPA:  promulgation of final  regulations, promulgation of requirements, and the denial of  petitions for the promulgation, amendment or repeal of  RCRA regulations.  See American Portland Cement Alliance  v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996);  42 U.S.C.   6976(a) (1995).  In determining whether an agency has  taken final action the court has looked to a variety of factors,  "including the agency's own characterization of its action,  publication or lack thereof in the Federal Register or Code of  Federal Regulations, and whether the action has a binding  effect on the rights of parties, and on the agency's ability to  exercise discretion in the future."  American Portland Cement, 101 F.3d at 776.  A decision by an agency to defer  taking action is not a final action reviewable by the court.  As  the court explained in concluding that it lacked jurisdiction  under RCRA to review certain regulatory determinations:


65
An announcement of an agency's intent to establish law and policy in future is not the equivalent of the actual promulgation of a final regulation.  EPA described in detail the areas that will require further analysis before final regulations can be promulgated, signaling that the Regulatory Determination was not intended as the last word on the subject....


66
American Portland Cement, 101 F.3d at 777 (citation omitted).


67
The environmental petitioners acknowledge in their initial  brief that EPA's failure to list product and fines from coke  piles is a "deferral" of a listing determination, but contend  nonetheless that it is reviewable under RCRA because EPA  lacked discretion to defer this determination under a consent  decree entered in Browner v. EDF, Civ. No. 89-0598 (D.D.C.  Dec. 9, 1994).  The environmental petitioners' position has  three shortcomings.8 First, EPA's decision to defer has none of the characteristics of final agency action.  In explaining its  decision on those product and fines inadvertently discarded  from saleable piles of coke, EPA stated it would "defer"  making a listing determination because the Browner consent  decree did not require such a determination and no other  factors made such a determination immediately necessary.Final Rule, 63 Fed. Reg. at 42,161.  A decision to defer has  no binding effect on the parties or on EPA's ability to issue a  ruling in the future.  American Portland Cement, 101 F.3d at  776.


68
Second, to the extent that the environmental petitioners  challenge EPA's interpretation of the consent decree, this  court lacks jurisdiction;  an action to enforce the consent  decree must be brought in the district court that issued the  decree, see 42 U.S.C.  6972(a);  Beckett v. Air Line Pilots  Ass'n, 995 F.2d 280, 285-86 (D.C. Cir. 1993);  Figures v. Bd.  of Public Utilities of Kansas City, 967 F.2d 357, 361 (10th  Cir. 1992), even assuming that the environmental petitioners  have standing to bring such an enforcement action (for the  Environmental Defense Fund was the sole environmental  organization in the Browner case).9


69
Accordingly, because the court lacks jurisdiction to consider the environmental petitioners' contention regarding EPA's  decision to defer listing coke product and fines, we dismiss  that portion of their petition for review as well.



Notes:


*
 Judge Sentelle authored Part I of this opinion, Judge Williams  Part II, and Judge Rogers Part III.


1
 The passages of the record cited by petitioners for a population risk as low as 0.7 cases in a million years appear to refer not to  an overall aggregate but only to the risk for a subset of the exposed  population, 76 home gardeners.  See Joint Appendix at 2592.  EPA,  however, does not defend on the basis that petitioners have chosen  an incomplete figure for population risk.  (We note that a population risk of 0.7 cases in a million years is equivalent to an individual  risk of 5 cancers in 100,000 lifetimes, which would be within EPA's  "candidate" levels for listing.)


2
 Because the environmental petitioners do not rely on the  Environmental Technology Council ("ETC") or its members for  standing, we need not address API's challenge to ETC's prudential  standing.


3
 Herbert H. Coleman's affidavit of August 11, 1999, states that  he "recently became a member of the Sierra Club," but does not  indicate that he was a member of the Sierra Club at the time the  petition was filed.  Although API made this point in its brief, the  environmental petitioners did not submit a responsive affidavit.


4
 We need not decide the question of executor standing.  Although executors are granted standing to sue on behalf of the  deceased owner of the relevant estate, see, e.g., Nat'l Taxpayers  Union, Inc. v. United States, 68 F.3d 1428, 1435 (D.C. Cir. 1995);Amato v. Wilentz, 952 F.2d 742, 751 (3d Cir. 1991), such standing  generally is based upon a vicarious, third-party representation  theory.  In the Matter of Oil Spill, 954 F.2d 1279, 1319 (7th Cir.  1992).  Whether such third-party standing could establish associational standing for an organization of which the third party is a  member is an open question in this circuit.


5
 "Coking," the process through which coke is produced, consists of two primary stages.  In the first, or conventional coking  stage, heavy oil bearing feedstocks are placed into a coke drum and  heated at high temperatures, thus breaking the long-chain hydrocarbon molecules found in the feedstocks, and ultimately producing  coke.  The second, or "coke quenching" stage, involves the injection  of water into the coke drum to quench and cool the coke.


6
 It is unclear whether Champion was a member of the Sierra  Club at the time the petition was filed, and thus eligible to provide  standing for the environmental petitioners.  However, the affidavit  by Gordon, who was a member of petitioner Citizens for a Better  Environment when the petition was filed, is in relevant parts  cumulative of Champion's affidavit except as to the location of the  facilities each has identified, for Gordon lives in Pittsburgh, California, while Champion lives in Corpus Christi, Texas.


7
 In a supplemental filing on April 5, 2000, the environmental  petitioners repeat that hazardous wastes could, under EPA's rule,  be inserted into the coking process but do not state that this occurs  or is substantially likely to occur at a location referred to in their  affidavits, nor that such information cannot be obtained.


8
 The environmental petitioners attempted, in their reply brief  and at oral argument, to recast their position to be that EPA's  deferral effectively constitutes a final rule insofar as EPA lacked  discretion to defer ruling under both the Browner consent decree  and 42 U.S.C.  6291(e)(2).  Under either characterization, the  environmental petitioners' contention fails for the same reasons.Furthermore, counsel for the environmental petitioners stated at  oral argument that they are not contending that jurisdiction should  be taken on the basis of unreasonable agency delay.  See Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 76  (D.C. Cir. 1984).


9
 The statute on which the environmental petitioners rely for a  "congressional mandate" for an EPA listing determination on coke  product and fines, 42 U.S.C.  6291(e)(2), underlies the Browner  consent decree litigation with respect to coke product.


