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AMERICAN MIN. CONGRESS v. U.S. E.P.A.

Nos. 88-1835, 88-1837 to 88-1839, 88-1843 and 88-1869.

907 F.2d 1179 (1990)

AMERICAN MINING CONGRESS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The ALUMINUM ASSOCIATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., and Zinc Corporation of America, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. The FERROALLOYS ASSOCIATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. PHELPS DODGE CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ASARCO INCORPORATED, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

United States Court of Appeals, District of Columbia Circuit.

Decided July 10, 1990.

Attorney(s) appearing for the Case

J. Daniel Berry and Jeffrey S. Holik, with whom John N. Hanson, Aaron H. Goldberg, Edward M. Green and Roderick T. Dwyer, Washington, D.C., for American Min. Congress and Phelps Dodge Corp., and M. Barry Meyer, Washington, D.C., for The Aluminum Ass'n, John D. Fognani, Denver, Colo., and Patricia A. Rooney, Washington, D.C., for ASARCO, Inc., and Jeffrey O. Cerar, Washington, D.C., for The Zinc Corp. of America, et al., were on the joint brief for petitioners American Min. Congress, The Aluminum Ass'n, Horsehead Resource Development Co., Inc., The Ferroalloys Ass'n, Phelps Dodge Corp. and ASARCO Inc.

Scott A. Schachter, Atty., Dept. of Justice, with whom Randolph L. Hill and Steven E. Silverman, Attys., U.S. E.P.A., Washington, D.C., were on the brief for respondent in all cases.

Robert V. Percival, with whom Karen Florini, for Environmental Defense Fund, and David R. Case, Washington, D.C., for Hazardous Waste Treatment Council, were on the joint brief for intervenors in all cases.

Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Petitioners in these consolidated cases seek review of a final rule, see 53 Fed.Reg. 35,412 (1988) (codified at 40 C.F.R. pts. 261 and 302 (1989)) (the "1988 Rule"), promulgated by the Environmental Protection Agency ("EPA" or "agency").1 In the 1988 Rule, EPA decided to relist as "hazardous"

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