963 F.

2d 603
34 ERC 1937, 60 USLW 2763, 22 Envtl.
L. Rep. 21,161

BEAZER EAST, INC. Appellant,

v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, REGION III.
No. 91-1692.

United States Court of Appeals,

Third Circuit.
Argued Feb. 25, 1992.
Decided May 12, 1992.

Kenneth K. Kilbert (argued), Babst, Calland, Clements and Zomnir, P.C.,

Pittsburgh, Pa., for appellant.
Barry M. Hartman, Acting Asst. Atty. Gen., Martin F. McDermott, Robert
L. Klarquist, M. Alice Thurston (argued), Attys., U.S. Dept. of Justice,
Washington, D.C., for appellee.
G. William Frick, Ralph J. Colleli, Jr., American Petroleum Institute,
Washington, D.C., amicus curiae.
John C. Chambers, Jr., Gordon D. Quin, Gregory J. Madden, McKenna &
Cuneo, Washington, D.C., for amicus curiae American Petroleum
Institute.
Before: SLOVITER, Chief Judge, SCIRICA and NYGAARD, Circuit
Judges.
OPINION OF THE COURT
NYGAARD, Circuit Judge.

Beazer East, Inc. appeals the district court's order granting summary judgment
in favor of the Environmental Protection Agency. The EPA cited Beazer for

four violations of Subtitle C of the Resource Conservation and Recovery Act,

42 U.S.C. 6921 to 6939b (1983 & Supp 1991) (RCRA). Beazer contested
these citations on the grounds that the subjects of the citations, its aeration
basins, were not subject to RCRA regulation. We are presented with a single
issue: whether Beazer's basins are "tanks" or "surface impoundments" for
purposes of 40 CFR 260.10. If we conclude that the basins are tanks, then
they are exempt from RCRA's groundwater monitoring requirements. On the
other hand, if the basins are surface impoundments, then they are subject to
RCRA regulation.
2

This issue has two components: first, whether the EPA's interpretation of the
"provide structural support" language in 260.10 to require tanks to be
completely self-supporting when removed from the ground and filled to
capacity with the material they are intended to contain, was plainly erroneous or
inconsistent with the regulation; second, whether the EPA's interpretation of the
"designed to contain" language in 260.10 to require tanks to be watertight was
plainly erroneous or inconsistent with the regulation.

We conclude that the basins are surface impoundments and that the EPA's
interpretation of the "provide structural support" language of 260.10 is not
plainly erroneous or inconsistent with the regulation. Hence, we do not reach
the second component, the "watertight" test. We will affirm the district court's
order granting summary judgment in favor of the EPA.

I.
4

Beazer, a Delaware corporation, operates a coal tar plant in Follansbee, West

Virginia, where it produces creosote, coal tar products and industrial chemicals.
Wastewater from the plant undergoes microbial treatment and is released into
the Ohio river. This treatment system consists of two aeration basins.1 Each
basin has a capacity of 500,000 gallons. They are built into the ground, are 15
feet deep, approximately 80 feet across, and are constructed of six-inch thick
reinforced concrete. The concrete overlies a two-inch thick layer of bank sand,
which in turn overlies a three-inch thick layer of compacted crushed slag.II.

In 1987, EPA Region III filed an Administrative Complaint, Compliance Order,

and Notice of Opportunity for Hearing against Beazer, charging it with four
violations of RCRA groundwater monitoring requirements. First, the EPA
charged that Beazer violated 40 CFR 265.91(a)(1) by failing to maintain a
monitoring well of sufficient depth to yield groundwater samples; second, that
Beazer violated 40 CFR 265.91(a)(2) by failing to maintain a monitoring well
of sufficient depth to detect statistically significant amounts of hazardous waste;

third, that Beazer violated 40 CFR 265.92(a) by failing to develop and follow
a groundwater sampling plan; and fourth, that Beazer violated 40 CFR 265.93
by failing to prepare an outline of a groundwater quality assessment program.
6

Beazer requested a hearing before an administrative law judge to contest the

citations. At the outset, Beazer and the EPA stipulated that the only issue to be
decided by the ALJ was whether the two basins were "tanks" or "surface
impoundments" within the definition of 40 CFR 260.10. Section 260.10
defines a tank as follows:

7
Tank
means a stationary device, designed to contain an accumulation of hazardous
waste which is constructed primarily of non-earthen materials (e.g., wood, concrete,
steel, plastic) which provide structural support.
8

Section 260.10 defines surface impoundment as follows:

9
Surface
impoundment or impoundment means a facility or part of a facility which is
a natural topographic depression, man-made excavation, or diked area formed
primarily of earthen materials (although it may be lined with man-made materials),
which is designed to hold an accumulation of liquid wastes or wastes containing free
liquids, and which is not an injection well. Examples of surface impoundments are
holding, storage, settling, and aeration pits, ponds and lagoons.
10

The EPA and Beazer stipulated that if the basins are found to be surface
impoundments, Beazer would pay a civil penalty of $30,000 and either comply
with RCRA or close the basins.

11

After the EPA filed its Administrative Complaint, the parties moved for an
accelerated decision by the ALJ. The ALJ denied this motion. In his Opinion
and Order, the ALJ opined that the foundation test applied by the EPA to the
definition of tanks was neither expressed nor implied in the 40 CFR 260.10
definition of tanks. The ALJ also concluded that the EPA may have violated
the Administrative Procedure Act, 5 U.S.C. 551 to 559 (1977 & Supp 1991),
by adopting the "Weddle memorandum,"2 as the basis for its foundation test.
The ALJ reasoned that the EPA had adopted a rule without subjecting it to the
notice and comment procedures required by 553 of the Administrative
Procedure Act. The ALJ scheduled the matter for a full adjudicative hearing.

12

After hearing extensive testimony from both parties' experts, the ALJ reversed
his position. In his Initial Decision, the ALJ concluded that the EPA's reliance
on the Weddle memorandum for its foundation test and the EPA's
watertightness test were both reasonable interpretations. He held that Beazer's

basins did not meet the definition of tanks and were instead surface
impoundments subject to RCRA groundwater monitoring requirements. The
ALJ assessed a civil penalty of $30,000 against Beazer and entered an order to
comply with RCRA monitoring requirements under 40 CFR 260.90-93.
Beazer appealed to the EPA Administrator.
13

On appeal, the EPA Administrator affirmed the ALJ. The Administrator did not
discuss the agency's use of the Weddle memorandum. Instead, the
Administrator concluded that both the foundation test and the watertightness
test were compatible with the regulatory purpose underlying RCRA, that is, to
protect groundwater from contamination by hazardous waste. The
Administrator upheld the civil penalty and the compliance order against
Beazer. Beazer appealed the Administrator's decision to the U.S. District Court.
The district court granted the EPA's motion for summary judgment, concluding
that the EPA's interpretation of 260.10 was neither plainly erroneous nor
inconsistent with the regulation.

III.
14

We review the district court's summary judgment by applying the same

standard used by the district court. Childers v. Joseph, 842 F.2d 689, 693 (3d
Cir.1988); Equimark Commercial Financial Co. v. CIT Financial Services
Corp., 812 F.2d 141, 142 (3d Cir.1987). Because we are reviewing agency
action, we shall decide all questions of law, interpret statutory provisions and
determine the meaning or applicability of the terms of an agency action. 5
U.S.C. 706. We can only set aside agency action found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. 5
U.S.C. 706(2)(A).

15

As a preliminary matter, Beazer disputes the standard by which we review this

agency action. Citing our decision in Bethlehem Steel v. OSHA, 573 F.2d 157,
161-62 (3d Cir.1978) Beazer claims that the standard requires that "the agency's
interpretation of a regulation cannot be upheld if the language of the regulation
did not provide fair notice of what the regulation prohibits or requires." Brief of
Appellant, at 17-18. As such, Beazer contends that the EPA must adhere to the
formal "notice and comment" rulemaking procedures found in the
Administrative Procedure Act, 5 U.S.C. 553.

16

We disagree. Beazer's standard of review argument confuses the distinction

between "legislative" rules and "interpretive" rules promulgated by an
administrative agency. To be sure, "legislative" rules that impose new duties
upon the regulated party have the force and effect of law and must be

promulgated in accordance with the proper procedures under the APA. See
United Technologies Corp. v. EPA, 821 F.2d 714, 718 (D.C.Cir.1987). The
APA requires also that general notice of the proposed regulation be published
in the Federal Register and interested persons be given an opportunity to
comment on the proposed rule. 5 U.S.C. 553(b),(e). "Interpretive" rules, on
the other hand, seek only to interpret language already in properly issued
regulations. United Technologies, 821 F.2d at 718 ("An interpretive rule simply
states what the administrative agency thinks the [underlying] statute means, and
only "reminds" affected parties of existing duties." quoting Citizens to Save
Spencer County v. EPA, 600 F.2d 844, 876 n. 153 (D.C.Cir.1979)); See
generally, Weaver, Judicial Interpretation of Administrative Regulations: The
Deference Rule, 45 U Pitt L Rev 587, 589 n 13 (Spring 1984). Interpretive
rules and statements of policy are exempted from the notice and comment
requirement. 5 U.S.C. 553(b)(A).
17

Here, the EPA is interpreting language already found in 260.10. The agency
is not adding or amending language to the regulation, hence it is not subject to
notice and comment procedures. We will thus apply the arbitrary and
capricious standard of review, guided as we must be, by the deference given an
agency's interpretation of its own regulations. Udall v. Tallman, 380 U.S. 1, 85
S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).

18

When we review an administrative agency's interpretation of its own

regulations, we defer to the agency's construction of the language of its own
regulation, "unless it is plainly erroneous or inconsistent with the regulation."
Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 797, 63
L.Ed.2d 22 (1980); Bowles v. Seminole Rock and Sand Co., 325 U.S. 410, 65
S.Ct. 1215, 1217 (1945); Director, OWCP v. Mangifest, 826 F.2d 1318, 1323
(3d Cir.1987). While we apply the "plainly erroneous" standard of review
where the meaning of the words in the regulation is in doubt or subject to
different interpretations, Butler County Memorial Hospital v. Heckler, 780 F.2d
352, 355 (3d Cir.1985), we are not at liberty to allow the agency to imply
language that does not exist in the regulation. Director, OWCP v. Mangifest,
826 F.2d at 1324; See also Bethlehem Steel v. OSHA, 573 F.2d at 161-62. We
acknowledge the complex nature of environmental statutes and regulations and
the specialized knowledge necessary to construe them, and therefore, subject to
these limitations, defer to the EPA's interpretations of its own regulations.
Modine Mfg. Corp. v. Kay, 791 F.2d 267, 273-74 (3d Cir.1986); United States
v. Unitank Terminal Service, 724 F.Supp. 1158, 1164 (E.D.Pa.1989).

IV.

19

20

The Resource Conservation and Recovery Act of 1976, as amended, was

enacted to protect groundwater from contamination by solid and hazardous
waste. Subtitle C of RCRA, 42 U.S.C. 6921-6934, establishes "cradle-tograve" regulations to assure that hazardous waste is safely treated, stored, and
disposed. See generally, United States v. Johnson & Towers, Inc., 741 F.2d
662, 666-67 (3d Cir.1984). Section 3004(a) of RCRA, 42 U.S.C. 6924(a),
requires the EPA to "promulgate regulations establishing such performance
standards [for hazardous waste facilities] ... as may be necessary to protect
human health and the environment." These standards may include, but need not
be limited to, requirements pertaining to reporting, monitoring and inspecting;
location, design and construction; contingency plans, operational continuity and
financial responsibility; and permit compliance. The state of West Virginia is
authorized to administer a state hazardous waste program pursuant to Section
3006(b) of RCRA, 42 U.S.C. 6926(b). Its program incorporates the
regulations at issue, but the EPA retains the authority to enforce those
regulations under Section 3008(a) of RCRA, 42 U.S.C. 6928(a)(2).
The EPA has established minimum national standards for handling hazardous
waste, by facilities operating on an "interim status." See 40 CFR 265.1.
Facilities operating on an interim basis, like permitted facilities, are required to
comply with all applicable performance standards under RCRA. Beazer
operates its facility on an interim status, and hence is governed by the Interim
Status Groundwater Monitoring requirements of 40 CFR part 265, subpart F.
Section 265.90(a) requires the owner or operator of a surface impoundment
containing hazardous waste to implement a groundwater monitoring program
"capable of determining the facility's impact on the quality of ground water in
the uppermost aquifer underlying the facility," except as provided in 40 CFR
265.1. Section 265.1(c)(10), in turn, provides that such a groundwater
monitoring program does not apply to "the owner or operator of an elementary
neutralization unit or a wastewater treatment unit as defined in 260.10 of this
chapter." A wastewater treatment unit is defined as a device which:

21 Is part of a wastewater treatment facility that is subject to a regulation under

(1)
either section 402 or 307(b) of the Clean Water Act; and
22 Receives and treats or stores an influent wastewater that is a hazardous waste as
(2)
defined in 261.3 of this chapter or that generates and accumulates a wastewater
treatment sludge that is a hazardous waste as defined in 261.3 or this chapter, or
treats or stores a wastewater treatment sludge which is a hazardous waste as defined
in 261.3 of this chapter; and
(3) Meets the definition of tank or tank system in 260.10 of this chapter.
23

24

40 CFR 260.10 (emphasis added). Consequently, if a unit conforms to the

definition of tank, it is not subject to a groundwater monitoring program under
RCRA. Thus, we come to the question we must decide: whether Beazer's
aeration basins are tanks or surface impoundments.

V.
25

It is undisputed that Beazer did not have an adequate groundwater monitoring

program to detect leaks from its aeration basins. Beazer argues that it is not
subject to RCRA because its basins are tanks, not surface impoundments.
Beazer first contends that the EPA's interpretation of 260.10, the foundation
test requiring that tanks be designed to be self-supporting when removed from
the ground and filled to design capacity with the material they were intended to
contain, is erroneous under any standard of review. In addition, Beazer
contends that the EPA's interpretation of 260.10, requiring tanks to be
watertight, is likewise erroneous under any standard of review.

A.
26

Unlike a surface impoundment, by definition a tank must be constructed

primarily of non-earthen materials (for example, wood, concrete, steel, or
plastic) and those materials must provide structural support. 40 CFR 260.10.
But how much structural support is necessary? The EPA has interpreted this
regulation to require that a tank be able to support itself when removed from
the ground and filled to capacity with the material it was intended to contain,
and that non-earthen materials provide the primary structural support. There is
no parallel structural support requirement for surface impoundments. Indeed,
surface impoundments may consist of topographic depressions dug in the
ground and lined with a man-made material.

27

Beazer concedes that if its basins were removed from the ground and filled to
capacity with its wastewater, they would not be self-supporting. Nevertheless,
Beazer argues that its concrete and welded wire fabric construction provides
adequate support to satisfy the "provide structural support" language of
260.10. Beazer contends that, by adopting the foundation test, the EPA imposed
a new substantive requirement, thereby giving legislative effect to an internal
agency memorandum without giving the regulated community an opportunity
to oppose or comment upon the new standard.

28

The EPA counters that its interpretation of the "structural support" language of
260.10 is not plainly erroneous or inconsistent with the regulation. The
agency claims that its self-supporting requirement promotes the policy of

RCRA. Tanks are subject to less stringent regulations than surface

impoundments. It is therefore reasonable, the agency argues, for the EPA to
require that they provide more protection to groundwater in the event the soil
surrounding a tank shifts or the tank is subjected to potentially great natural
forces.
29

In its Final Decision, the EPA Administrator reasoned as follow:

30 interpretation of the "structural support" language [of 260.10], therefore must

An
exclude basins that rely on the surrounding soil for structural support. The "selfsupporting" interpretation urged by the Region is the only reading of the "tank"
definition that addresses this concern. The "self-supporting" interpretation ensures
that a device will be able to maintain its integrity even if the support provided by the
surrounding soil is dissipated through settlement or some other change. Accordingly,
the foundation test, which determines whether a basin is self-supporting, is not just a
theoretical exercise, requiring tanks to perform under conditions that will never
exist, as [Beazer] argues. Instead, the foundation test requires tanks to perform under
conditions that very well might exist if the supporting soil settles or otherwise shifts.
31

Final Decision of the EPA Administrator at 12. While we disagree that the
foundation test is the "only reading" of the regulation, we find this view to be a
reasonable interpretation of the regulation.3 See Chemical Mfrs. Ass'n v.
Natural Resources Defense Council, 470 U.S. 116, 105 S.Ct. 1102, 1107, 84
L.Ed.2d 90 (1985) (reviewing court need not conclude that the EPA's
interpretation is the only permissible interpretation of the regulation, but that it
is a "sufficiently rational" one). The EPA's interpretation of 260.10 is
therefore neither plainly erroneous nor inconsistent with the regulation.

32

Section 260.10 requires greater structural integrity from tanks than from surface
impoundments. This requirement is consistent with the policy of protecting
groundwater from hazardous waste. The EPA requires that other tanks subject
to RCRA permitting requirements (for example, those regulated under Subpart
J) be certified by an engineer to have "sufficient structural strength ... to ensure
that it will not collapse, rupture or fall." 40 CFR 264.191(b). There is no reason
to believe that the rupture or collapse of Beazer's wastewater treatment basin is
any less hazardous to the groundwater than the rupture or collapse of other
tanks within the scope of RCRA.

33

Moreover, a tank designed to be self-supporting will have stronger walls and

tighter joints than a surface impoundment and will not have to rely on the
surrounding soil for structural support. Hence, in the event the surrounding soil
shifts, a tank will prevent hazardous waste from contaminating the

groundwater. See 40 CFR 265.193(b)(1) (secondary containment systems must

be "[p]laced on a foundation or base capable of providing support to the
secondary containment system and resistance to pressure gradients above and
below the system and capable of preventing failure due to settlement,
compression, or uplift.")
34

Beazer argues that the regulation does not specify that anything more than
"some" structural support is needed to come within the RCRA definition of
tank. We note, however, that in the complex area of environmental regulation,
the EPA must create bright lines to separate prohibited and permissible activity.
We defer to this line-drawing provided the interpretation is both reasonable and
consonant with Congress' intent. For example, in Vineland Chemical Co. v.
EPA, 810 F.2d 402 (3d Cir.1987), the EPA interpreted RCRA's provision
requiring a regulated party to certify that it is financially responsible. 810 F.2d
at 409. While recognizing that the statute was somewhat ambiguous, we
nevertheless deferred to the agency's interpretation because it clarified RCRA's
regulation in a manner consistent with Congress' intent to accelerate the EPA's
enforcement activities under RCRA. Id. In like manner, the foundation standard
gives meaning to the operative language of 260.10, thereby creating a bright
line by which the EPA may determine which wastewater facilities are subject to
groundwater monitoring requirements.

35

Beazer also contends that, even assuming the reasonableness of the EPA's
interpretation, regulated parties were not provided adequate notice that tanks
must be self-supporting when removed from the ground and filled to capacity.
But it is a basic tenet of administrative law that agencies have some discretion
to chose between adjudication and rulemaking when interpreting statutes and
regulations committed to their authority, Bowen v. Georgetown University
Hospital, 488 U.S. 204, 109 S.Ct. 468, 476-79, 102 L.Ed.2d 493 (1988) (Scalia,
concurring); NLRB v. Bell Aerospace, 416 U.S. 267, 94 S.Ct. 1757, 1772, 40
L.Ed.2d 134 (1974), subject only to the limitations imposed by Congress.
Chemical Mfrs. Ass'n, 105 S.Ct. at 1107; Martin, 111 S.Ct. at 1177. The
Administrative Procedure Act does expressly prohibit an agency from
retroactively imposing an interpretive rule upon a regulated party. See for
example 5 U.S.C. 551(4) (agency rules can only have prospective effect).
Nonetheless, nothing in the APA prohibits an agency from adopting or revising
an interpretation of a regulation that has been properly promulgated in an
adjudication and applying that interpretation retroactively. Bowen, 109 S.Ct. at
476; SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995
(1947).4 If the agency affords the party a "full opportunity to be heard before
the [agency] makes its determination" Bell Aerospace, 94 S.Ct. at 1772, we
cannot second-guess the agency decision whether to interpret a standard by

rulemaking or by adjudication. Chenery, 67 S.Ct. at 1580.

36

Beazer contends the EPA never gave it adequate notice because the EPA never
gave meaning to the clause "provide structural support" in 260.10. Unlike its
challenge to the EPA's use of the term "to contain," Beazer does not contend
that the EPA has inconsistently interpreted what level of structural support is
necessary for a basin to be considered a tank. Instead, Beazer contends that it
was wronged when the EPA imposed a completely new standard. We disagree.
This is not a situation where the agency inconsistently interpreted a standard
over time or changed its interpretation. See Chemical Mfrs. Ass'n, 105 S.Ct. at
1112. Rather, the EPA is making a reasonable attempt to fill the interstices of a
complex regulatory scheme by giving meaning to regulatory language entirely
within its authority to define. See, for example, Vineland Chemical Co., 810
F.2d at 409; Modine Mfg. Corp., 791 F.2d at 273-74. It is of little consequence
that the EPA's interpretation is new.5 Indeed, even if the EPA's interpretation of
the "provide structural support" language of 260.10 was developed for the
first time in an agency adjudication, we would give the agency no less
deference than if it had promulgated an interpretive rule.6 See Martin, 111 S.Ct.
at 1179-80.

37

In conclusion, we will not question the EPA's choice to give meaning to the
"structural support" language of 260.10 through adjudication rather than
rulemaking. As Justice Scalia has recently said, "where legal consequences
hinge upon the interpretation of statutory requirements, and where no
preexisting interpretive rule construing those requirements is in effect, nothing
prevents the agency from acting retroactively through adjudication." Bowen,
109 S.Ct. at 480 (Scalia, concurring). That is precisely the case here. Rather
than amending a preexisting interpretation of 260.10, the EPA is developing
its interpretation through adjudication. Beazer contends the EPA must comply
with the notice and comment procedures applicable to agency rulemaking, i.e.,
advance notice published in the Federal Register. But no such notice is required
where the agency proceeds by adjudication. Therefore, Beazer's contention that
it was not given adequate notice of the EPA's interpretation fails.

38

Last, the ALJ found that Beazer presented sufficient evidence to establish that
its aeration basins are of rigid construction, but agreed with the EPA that if
removed from the ground the basins would collapse. The ALJ also found that
Beazer's basins rely in large part upon the surrounding soil (earthen, rather than
non-earthen material) for structural support, and therefore were properly
characterized as surface impoundments rather than tanks. These findings were
supported by substantial evidence and cannot be disturbed. Consequently, the
EPA's interpretation of the "structural support" language in 260.10 is neither

plainly erroneous nor inconsistent with the regulation, and its finding that
Beazer violated RCRA groundwater monitoring requirements was supported by
substantial evidence.
B.
39

Beazer next argues that the EPA erroneously interprets the term "to contain" in
260.10, to mean that tanks must be designed to be watertight. Beazer points
out that the EPA has inconsistently used the terms "to contain" and "to hold"
over the course of its enforcement of RCRA; at times synonymously, and at
other times requiring greater liquid containment under "to contain" than under
"to hold." As a result of this alleged inconsistent enforcement history, Beazer
contends that it did not have fair notice of what conduct is actually prohibited
under 260.10. We do not reach this issue because Beazer's basins do not meet
the structural support requirement under 260.10, a necessary predicate for a
basin to be considered a tank.7

VI.
40

We conclude that the EPA's interpretation of 260.10, requiring tanks to be

self-supporting when removed from the ground and filled to capacity with the
material they were intended to contain, is not plainly erroneous and is
consistent with the plain language of the regulation. This interpretation
establishes a bright line rule for the regulated industry and promotes the
important environmental policy underlying the Resource Conservation and
Recovery Act. Since Beazer fails to meet RCRA standards under the foundation
test that its basins are surface impoundments, we do not decide whether the
EPA's distinction between the terms "to hold" and "to contain" in 260.10 is
reasonable. The EPA's Final Order enforcing the Administrative Complaint and
the civil penalties assessed against Beazer was not arbitrary or capricious. We
will therefore affirm the district court's order granting the EPA's motion for
summary judgment.

The term "basin" is a generic term which may be applied to either a "tank" or a
"surface impoundment."

The "Weddle memorandum" was an internal EPA memo from the acting
director of the agency's Washington, D.C., Office of Solid Waste to the
Director of EPA Region IV. The memorandum distinguished a tank from a
surface impoundment by "structural support." That is to say, if it were free
standing, and filled to its design capacity with the material it was intended to

hold, would the walls or shell of the unit alone provide sufficient support to
maintain the structural integrity. If so, it can be considered a tank. If not, it is a
surface impoundment
3

We accept that the official agency interpretation of 260.10 is that developed

through the adjudication process, rather than that generated through internal
agency memoranda. See Martin v. OSHRC, --- U.S. ----, 111 S.Ct. 1171, 1179,
113 L.Ed.2d 117 (1991) (an agency's interpretation of a regulation developed in
an adjudication is entitled to deference)

However, courts will not allow retroactive application of an agency

adjudication where doing so would result in "manifest injustice." See District
Lodge 64, Int'l Ass'n of Machinists & Aerospace Workers, 949 F.2d 441, 44649 (D.C.Cir.1991); Consolidated Freightways v. NLRB, 892 F.2d 1052, 1058
(D.C.Cir.1989)

The EPA has previously considered its interpretation of the "provide structural
support" language found in 260.10 in a recent adjudication, but there the
agency was presented with a different factual setting. See In the Matter of
Brown Wood Preserving Co., No. RCRA-84-16-R, Final Decision of the EPA
Administrator (May 3, 1989)

This is not to say that an agency's interpretation of one of its regulations,

developed in an adjudication, is always entitled to deference. For example, if
the agency's interpretation is "wholly unsupported by regulations, rulings, or
administrative practice," Bowen, 109 S.Ct. at 473, we will not defer. See also
Martin, 111 S.Ct. at 1179. Here, the EPA's interpretation is amply supported by
the regulatory context

We note that there is little guidance in the regulations or in the Federal Register
that points to a clear distinction between "to hold" and "to contain" as used in
RCRA. While it may be true that the EPA's interpretation of these terms
accords with the overall regulatory goals of RCRA, if such a distinction
effectively imposes additional substantive requirements on the regulated
community, it should be placed directly in the regulations. The regulations
would then be subject to notice and comment, with appropriate participation by
the regulated community
We caution that we will not defer to an interpretation that implies language that
simply cannot be found in the regulation. Director, OWCP v. Mangifest, 826
F.2d 1318, 1324 (3d Cir.1987); Marshall v. Western Union Telegraph Co., 621
F.2d 1246, 1252-54 (3d Cir.1980). As we stated in Mangifest, "[h]aving written
the regulations, the Director is responsible for their text. If the meaning is not
clear on a reasonably objective basis, then the regulations should be changed so

that no ambiguity remains." 826 F.2d at 1334 (Weis, J., concurring).