Environmental Defense Fund v. E.P.A.

• Decision Date: 23 August 1988
• Docket Number: 86-1691,Nos. 86-1584,s. 86-1584
• Citation: 852 F.2d 1316,271 App.D.C. 349
• Parties: , 271 U.S.App.D.C. 349, 18 Envtl. L. Rep. 21,169 ENVIRONMENTAL DEFENSE FUND, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents, Aluminum Association, Incorporated, American Mining Congress, Idaho Mining Association, and Kennecott, Intervenors. HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents, American Mining Congress, the Fertilizer Institute, and Aluminum Association, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1316

852 F.2d 1316

28 ERC 1089, 271 U.S.App.D.C. 349, 18

Envtl. L. Rep. 21,169

ENVIRONMENTAL DEFENSE FUND, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents,

Aluminum Association, Incorporated, American Mining

Congress, Idaho Mining Association, and Kennecott,

Intervenors.

HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents,

American Mining Congress, the Fertilizer Institute, and

Aluminum Association, Inc., Intervenors.

Nos. 86-1584, 86-1691.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 11, 1987.

Decided July 29, 1988.

As Modified on Denial of Rehearing Aug. 23, 1988.

Robert V. Percival, Washington, D.C., for Environmental Defense Fund, and David R. Case, Washington, D.C., for Hazardous Waste Treatment Council, with whom Alan S. Miller, Washington, D.C., Debra Hirshkowitz (student counsel) and Jan Wagner (student counsel) were on the brief, for petitioners.

Margaret B. Silver, Atty., E.P.A., with whom Scott A. Schachter, Atty., Dept. of Justice and Roger J. Marzulla, Acting Asst. Atty. Gen., Washington, D.C., were on the brief, for respondents.

John N. Hanson, with whom, Donald J. Patterson, Jr.; Edward M. Green, Washington, D.C., Roderick T. Dwyer, for American Mining Congress; Richard A. Flye Christian Volz, Carole Stern, Washington, D.C., for The Fertilizer Institute; Alan S. Ward, Jeffrey S. Holik, Washington, D.C., for Aluminum Ass'n, Inc.; Alfred V.J. Prather, Kurt E. Blase, Washington, D.C., for Kennecott; and Robert M. Tyler, Jr., Boise, Idaho, for Idaho Mining Ass'n, were on the joint brief for intervenors American Mining Congress, et al. William R. Baker, III and Adrienne S. Wieand, Washington, D.C., also entered appearances for intervenor Aluminum Association, Inc., in No. 86-1691.

Before MIKVA and BUCKLEY, Circuit Judges, and OBERDORFER ^*, District Judge.

Opinion for the Court filed by District Judge OBERDORFER.

OBERDORFER, District Judge:

In these consolidated cases, petitioners Environmental Defense Fund ("EDF") and Hazardous Waste Treatment Council ("HWTC") seek review of a final decision by the Administrator of the Environmental Protection Agency ("EPA" or "the Agency") withdrawing a proposed reinterpretation of the mining waste exclusion contained in section 3001(b)(3)(A)(ii) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6921(b)(3)(A)(ii). That section, known as the "Bevill Amendment," suspends certain mining wastes from regulation under the provisions governing hazardous waste treatment and disposal contained in Subtitle C of RCRA. 42 U.S.C. Secs. 6921-6931. The EPA's proposed reinterpretation of the Bevill Amendment was published in the Federal Register on October 2, 1985. 50 Fed.Reg. 40,292 (1985). The Agency's final action withdrawing the proposed reinterpretation was published on October 9, 1986. 51 Fed.Reg. 36,233 (1986).

Based on a careful review of the EPA's decision and the arguments advanced by the parties, we conclude that the EPA's decision to withdraw the proposed reinterpretation in its entirety without seeking additional time to refine it was arbitrary and capricious and contrary to law because it left six hazardous smelter wastes unregulated under Subtitle C and reinstated an overbroad interpretation of the Bevill Amendment. Accordingly, we grant the petition for review and order EPA to relist six hazardous smelter wastes and complete the rest of its statutory responsibilities under Subtitle C of RCRA.

I. BACKGROUND

Congress enacted the Resource Conservation and Recovery Act in 1976. Pub.L.No. 94-580, 90 Stat. 2795. Subtitle C of RCRA, 42 U.S.C. Secs. 6921-6931, established a comprehensive "cradle to grave" regulatory scheme governing the treatment, storage, and disposal of hazardous wastes. Section 3001(a) of RCRA, 42 U.S.C. Sec. 6921(a), directs EPA to promulgate regulations identifying the characteristics of hazardous waste and listing particular hazardous wastes which would be subject to regulation under Subtitle C. In promulgating those regulations, EPA was directed to take into account criteria including "toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." 42 U.S.C. Sec. 6921(a). Section 3004 of RCRA, 42 U.S.C. Sec. 6924, directs EPA to promulgate standards required of facilities engaged in the treatment, storage, and disposal of hazardous waste.

Subtitle D of RCRA, 42 U.S.C. Secs. 6941-6949, also enacted in 1976, addresses solid wastes that are not hazardous. Under Subtitle D, states develop solid waste management plans that are based on federal guidelines and are submitted to EPA for approval. 42 U.S.C. Secs. 6942-6947.

Section 8002(f) of RCRA, 42 U.S.C. Sec. 6982(f), directs the EPA to conduct a comprehensive study of the adverse environmental effects of "solid wastes from active and abandoned surface and underground mines," including examination of alternative methods of disposal to mitigate adverse environmental effects.

On December 18, 1978, EPA proposed regulations to govern the management of hazardous wastes under RCRA Subtitle C. 43 Fed.Reg. 58,946 (1978). EPA proposed to subject certain "special wastes," which were generated in "very large volumes" but were thought to pose "relatively low" hazards, to fewer regulatory requirements than other hazardous wastes because they were regarded as "not amenable to the control techniques" proposed for hazardous waste treatment, storage, and disposal. Id. at 58,992. Wastes from the "extraction, beneficiation, and processing of ores and minerals" were classified as "special wastes." Id. at 59,016. Other "special wastes" included cement kiln dust waste, utility waste such as bottom ash waste and fly ash waste, waste from phosphate mining such as overburden and slag, overburden and waste rock from uranium mining, and gas and oil drilling muds and oil production brines. Id. at 58,991, 59,015-16. EPA noted that it had "very little information on the composition, characteristics, and the degree of hazard posed by these wastes ..." Id. at 58,991.

On May 19, 1980, EPA promulgated final regulations identifying the characteristics of hazardous waste, and listing specific hazardous wastes as subject to Subtitle C regulation. The "special wastes" concept was not included in the final regulations, however, because EPA had revised its criteria for defining hazardous waste and thus expected fewer of the "special wastes" to be classified as hazardous and because the promulgated management standards were more flexible than those originally proposed in 1978. 45 Fed.Reg. 33,174 (1980).

The final regulations were to take effect on November 19, 1980. Id. at 33,084. Among the wastes listed in these regulations as hazardous and thus subject to regulation under Subtitle C were three hazardous waste streams from primary metal smelting operations, namely, copper blowdown wastes, lead impoundment solids, and zinc wastewater sludges. Id. at 33,124. Three more hazardous wastes from metal smelting operations were listed on July 16, 1980, including spent potliners from primary aluminum reduction ("aluminum potliners"), and emission control dust or sludge from the production of ferrochromium and ferrochromium-silicon. 45 Fed.Reg. 47,832-34 (1980). EPA determined that these wastes "pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed." Id. at 47,832.

The Bevill Amendment

On October 21, 1980, just before the Subtitle C regulations were to take effect, Congress enacted the Solid Waste Disposal Act Amendments of 1980, Pub.L.No. 96-482, 94 Stat. 2334, which included the "Bevill Amendment," named after its sponsor Congressman Bevill of Alabama. The Bevill Amendment added two key provisions to RCRA. First, in addition to extending the deadline on the study of mining wastes required by Sec. 8002(f) of RCRA, it added Sec. 8002(p) which required the EPA to conduct a comprehensive study of the adverse environmental and health effects, if any, of "the disposal and utilization of solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from uranium mining." 42 U.S.C. Sec. 6982(p). The EPA was also directed to study the adverse health and environmental effects of several other types of wastes characterized as "special wastes" by EPA in 1978, including fly ash waste, bottom ash waste, slag waste, and cement kiln dust waste. Id. Secs. 6982(n), (o). The studies were to be completed by October 21, 1983. The Sec. 8002(p) study of wastes from "the extraction, beneficiation, and processing of ores and minerals" was to include an analysis of:

(1) the source and volumes of such materials generated per year;

(2) present disposal and utilization practices;

(3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials (4) documented cases in which danger to human health or the environment has been proved;

(5) alternatives to current disposal methods;

(6) the costs of such alternatives;

(7) the impact of those alternatives on the use of phosphate rock and uranium ore, and other natural resources; and

(8) the current and potential utilization of such materials.

42 U.S.C. Sec. 6982(p).

Second, the Bevill Amendment required EPA to defer, until at least six months after completion of the studies, the imposition of Subtitle C regulation on "[s]olid waste from the extraction, beneficiation, and processing of ores and minerals" and on several other categories of waste including fly ash waste and cement kiln dust waste. 42 U.S.C. Sec. 6921(b)(3)(A). However, not later than six months after the study of mining wastes was...