United Technologies Corp. v. U.S.E.P.A.
| Decision Date | 23 June 1987 |
| Docket Number | Nos. 85-1654,85-1658,85-1655,s. 85-1654 |
| Citation | 821 F.2d 714 |
| Parties | , 261 U.S.App.D.C. 226, 17 Envtl. L. Rep. 21,015 UNITED TECHNOLOGIES CORPORATION, Pratt & Whitney Group, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Petroleum Institute, American Iron and Steel Institute, Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors. ENVIRONMENTAL DEFENSE FUND, INC., et al., Petitioners, v. Lee M. THOMAS, Administrator and U.S. Environmental Protection Agency, Respondents, American Petroleum Institute, American Iron and Steel Institute, Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors. AMERICAN PETROLEUM INSTITUTE, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, Edison Electric Institute, American Iron and Steel Institute, Intervenors. AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. Lee M. THOMAS, Administrator and U.S. Environmental Protection Agency, et al., Respondents, American Petroleum Institute, Edison Electric Institute, Chemical Manufacturers Association, Intervenors. MOTOR VEHICLE MANUFACTURERS ASSOCIATION of the UNITED STATES, INC., Petitioner, v. Lee M. THOMAS, Administrator and U.S. Environmental Protection Agency, Respondents, American Petroleum Institute, American Iron and Steel Institute, Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors. EDISON ELECTRIC INSTITUTE, et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Petroleum Institute, American Iron and Steel Institute, Chemical Manufacturers Association, Delmarva Power and Light Company, Intervenors. to 85-1660 and 85-1662. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the U.S. Environmental Protection agency.
James B. Atkin, San Francisco, Cal., with whom were Frederic D. Chanania and Arnold S. Block, Washington, D.C., for American Petroleum Institute, petitioner in No. 85-1658 and intervenor in Nos. 85-1654, 85-1655, 85-1659, 85-1660 and 85-1662.
Robert Wise and John W. Casey, for United Technologies Corp., Pratt & Whitney Group, petitioner in No. 85-1654.
Gary H. Baise, Karl S. Bourdeau and Paul E. Shorb, III, for American Iron and Steel Institute, petitioner in No. 85-1659 and intervenor in Nos. 85-1654, 85-1655, 85-1658, 85-1660 and 85-1662.
John T. Smith, II, David F. Zoll and Kenneth M. Kastner, for Chemical Mfrs. Ass'n intervenor in Nos. 85-1654, 85-1655, 85-1659, 85-1660, 85-1662 were on the joint brief for petitioners and intervenors. Stark Ritchie and John B. Fahey also entered appearances.
William R. Weissman, Washington, D.C., with whom Charles C. Abeles and Douglas H. Green, were on brief, for Edison Elec. Institute, et al., petitioner in No. 85-1662 and intervenor in Nos. 85-1654, 85-1655, 85-1658, 85-1659 and 85-1660 and Delmarva Power and Light Company, intervenor in No. 85-1662. Sue M. Briggum also entered an appearance.
Robert V. Percival, Washington, D.C., with whom David G. Lennett, Jane L. Bloom and Donald Strait, were on brief, for Environmental Defense Fund, et al., petitioners in No. 85-1655.
Robert A. Fineman, Detroit, Mich., Joseph M. Polito and William H. Crabtree, were on brief, for Motor Vehicle Mfrs. Ass'n of the U.S., Inc., petitioner in No. 85-1660.
Michael A. McCord, Washington, D.C., Atty., Dept. of Justice and Christina Kaneen, Atty., E.P.A., of the Bar of the Supreme Court of Illinois, pro hac vice by special leave of the Court, with whom Mark A. Greenwood, Asst. Gen. Counsel and Barbara E. Pace, Atty., E.P.A., were on brief, for respondents in Nos. 85-1654, 85-1655, 85-1658, 85-1659, 85-1660 and 85-1662.
Before EDWARDS and STARR, Circuit Judges, and SWYGERT, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge EDWARDS.
These consolidated cases involve various challenges to a final rule promulgated by the Environmental Protection Agency ("EPA" or the "Agency") to conform its hazardous waste regulations to new statutory provisions enacted in the Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221 (the "1984 Amendments"). The 1984 Amendments were enacted by Congress to modify and augment the hazardous waste provisions of the Resource Conservation and Recovery Act of 1976 ("RCRA" or the "Act"). See Hazardous Waste Management System; Final Codification Rule (the "Final Rule"), 50 Fed.Reg. 28,702 (1985) ().
Based on our careful review of the Final Rule, and the arguments advanced by the parties, we conclude that the regulations promulgated by the EPA are, for the most part, reasonable and consistent with the 1984 Amendments. There is one aspect of the Final Rule, however, that is inconsistent with the plain meaning of the 1984 Amendments. Accordingly, we affirm in part and reverse and remand in part.
Subtitle C of the RCRA, 42 U.S.C. Secs. 6921-6934 (1982), established a "cradle-to-grave" regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste. Under the Act, the EPA is required to identify those solid wastes that are subject to regulation as hazardous waste, 1 and to promulgate regulations establishing performance standards applicable to owners and operators of new and existing facilities engaged in the treatment, storage and disposal of hazardous waste. Section 3004(a) of the Act, 42 U.S.C. Sec. 6924(a) (Supp. III 1985). Under section 3005 of the RCRA, 42 U.S.C. Sec. 6925 (1982 & Supp. III 1985), owners and operators of such treatment, storage or disposal facilities must obtain operating permits from the Agency or from a state authorized by the EPA to issue such permits. Because many hazardous waste management facilities were already in operation when Subtitle C was enacted, Congress allowed existing facilities to operate on an "interim status" basis, until administrative action is taken on a section 3005 permit. Section 3005(e) of the Act, 42 U.S.C. Sec. 6925(e) (Supp. III 1985). All permittees are required to comply with applicable section 3004 standards. Section 3005(c) of the Act, 42 U.S.C. Sec. 6925(c) (Supp. III 1985).
The EPA has promulgated several sets of regulations implementing Subtitle C of the RCRA. See 40 C.F.R. pts. 260-266, 270, 271 (1986). The section 3004 standards applicable to facilities with permits are set forth in Part 264. Part 265 sets forth the standards applicable to facilities operating under interim status.
Although the RCRA, as originally enacted, imposed a regulatory scheme on the active management of hazardous wastes, it did not require permittees to take significant remedial action to correct past mismanagement of hazardous waste. In 1980, however, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Secs. 9601-9657 (1982), to provide for the cleanup of hazardous releases not addressed by other statutory programs. Included in CERCLA was a "Superfund" to pay for such corrective action pending recovery of the cleanup costs from the owner or operator who was responsible for the release.
Congress comprehensively amended the RCRA in 1984, when it enacted the 1984 Amendments. The 1984 Amendments imposed additional section 3004 requirements on permittees. Of particular relevance here is section 3004(o )(1)(A), 42 U.S.C. Sec. 6924 (o)(1)(A) (Supp. III 1985), which requires every landfill or surface impoundment unit for which an application for a final determination regarding the issuance of a permit is received after November 8, 1984 to conform with certain design and monitoring requirements. Also, under section 3004(u), 42 U.S.C. Sec. 6924(u) (Supp. III 1985), owners and operators must take corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a facility regardless of the time at which waste was placed in the unit.
The Agency then proceeded to promulgate regulations to implement the 1984 Amendments. On July 15, 1985, it issued the Final Rule, the purpose of which was "to incorporate into the existing Subtitle C regulations a set of requirements from the new RCRA amendments that became effective as a matter of statute in the short term." 50 Fed.Reg. at 28,703. The Final Rule was made effective immediately and was promulgated without prior notice or an opportunity for comment by interested parties. Thereafter, the Agency promulgated other regulations implementing other aspects of the 1984 Amendments, which were subjected to notice and comment procedures before adoption as a final rule. See Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Final Rule, 52 Fed.Reg. 8704 (1987). As of this date, the Agency is considering petitions seeking the promulgation of additional regulations to flesh out portions of the 1984 Amendments. See Request for Stay Pending Judicial Review or for Reconsideration, reprinted in Addendum A to Brief for the Respondent.
Several groups of petitioners have asked this court to review various aspects of the Final Rule. One group, hereafter referred to as "Industry Petitioners," 2 is composed of industrial concerns that, as a by-product of their production processes, generate hazardous waste that they manage on-site. Several utilities and utility associations (including the Edison Electric Institute), hereinafter referred to as "EEI," have also challenged certain of the regulations. Finally, the Environmental Defense Fund and the Natural Resources Defense Council (collectively "EDF") have filed a petition for review.
The Industry Petitioners contend that, because the Final Rule was promulgated without notice and...
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