906 F.2d 729 (D.C. Cir. 1990), 88-1606, American Petroleum Institute v. U.S. E.P.A.

Docket Nº:88-1606, 88-1654, 88-1763, 88-1781, 88-1801, 89-1053 to 89-1059 and 89-1061 to 89-1064.
Citation:906 F.2d 729
Party Name:AMERICAN PETROLEUM INSTITUTE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Hazardous Waste Treatment Council, Steel Manufacturers' Association [Formerly Steel Bar Mills & National Steel Producers Association], Intervenors. AMERICAN PETROLEUM INSTITUTE, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respon
Case Date:June 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 729

906 F.2d 729 (D.C. Cir. 1990)

AMERICAN PETROLEUM INSTITUTE, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Hazardous Waste Treatment Council, Steel Manufacturers'

Association [Formerly Steel Bar Mills & National

Steel Producers Association], Intervenors.

AMERICAN PETROLEUM INSTITUTE, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Hazardous Waste Treatment Council, Intervenor.

HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Hazardous Waste Treatment Council, American Mining Congress,

Intervenors.

NATIONAL ASSOCIATION OF METAL FINISHERS, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Hazardous Waste Treatment Council, American Iron and Steel

Institute, Intervenors.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Lee

Thomas, Administrator, Respondents,

American Iron and Steel Institute, American Mining Congress,

The Dow Chemical Company, Mobil Oil Corporation,

The Fertilizer Institute, American

Petroleum Institute, Intervenors.

CHEMICAL WASTE MANAGEMENT, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Hazardous Waste Treatment Council, The International Metals

Reclamation Company, Inc., American Mining

Congress, Intervenors.

HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Chemical Manufacturers Association, American Petroleum

Institute, The Fertilizer Institute, Intervenors.

CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Hazardous Waste Treatment Council, Intervenor.

NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION, INC., and Waste

Management of North America, Inc., Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Lee M.

Thomas, Administrator, Respondents,

Hazardous Waste Treatment Council, Intervenor.

AMERICAN IRON AND STEEL INSTITUTE, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

AMERICAN IRON AND STEEL INSTITUTE, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

MONSANTO COMPANY, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

The DOW CHEMICAL COMPANY, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

AMERICAN MINING CONGRESS, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

ROSS INCINERATION SERVICES, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

American Iron and Steel Institute, Intervenor.

Nos. 88-1606, 88-1654, 88-1763, 88-1781, 88-1801, 89-1053 to 89-1059 and 89-1061 to 89-1064.

United States Court of Appeals, District of Columbia Circuit.

June 26, 1990

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[Copyrighted Material Omitted]

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       Argued April 20, 1990.

       Ralph J. Colleli, Jr., with whom G. William Frick, James K. Jackson, for American Petroleum Institute; Karl S. Bourdeau, Steven F. Hirsch and Barton C. Green, for American Iron and Steel Institute; John T. Smith, II, for Chemical Mfrs. Ass'n and National Ass'n of Metal Finishers were on the joint brief, for Industry petitioners in Nos. 88-1606, 88-1654, 88-1781, 89-1055, 89-1057, 89-1058, 89-1059. Thomas S. Llewellyn and James K. Jackson also entered appearances for American Petroleum Institute.

       David R. Case, with whom Jane L. Bloom, Donald S. Strait and Jacqueline M. Warren, for Natural Resources Defense Council; J. Brian Molloy and Douglas H. Green, for Chemical Waste Management, Inc., were on the joint brief for petitioners, Natural Resources Defense Council, et al., in Nos. 88-1801, 89-1053, 89-1054. Joan Z. Bernstein also entered an appearance, for Chemical Waste Management, Inc.

       David F. Zoll, Ronald A. Shipley and John T. Smith, II, for Chemical Mfrs. Ass'n; David R. Case, for Hazardous Waste Treatment Council were on the joint brief, for petitioners, The Chemical Mfrs. Ass'n, et al., in No. 89-1059.

       Jeffrey O. Cerar and Ellen R. Hornstein entered appearances, for petitioner, Horsehead Resource Development Co., Inc., in No. 88-1763.

       Angus MacBeth and Samuel I. Gutter entered appearances, for petitioners, National Solid Waste Management Ass'n, Inc. and Waste Management of North America, Inc., in No. 89-1056.

       John T. Smith, II, also entered an appearance for petitioner, Monsanto Company in No. 89-1061.

       Karl S. Bourdeau also entered an appearance, for petitioner, The Dow Chemical Co., in No. 89-1062.

       John N. Hanson and Edward M. Green entered appearances, for petitioner, American Min. Congress, in No. 89-1063.

       Richard D. Panza and Thomas A. Downie entered an appearance, for petitioner, Ross Incineration Services, Inc., in No. 89-1064.

       Daniel S. Goodman, Atty., U.S. Dept. of Justice, and Steven E. Silverman, Atty., U.S. E.P.A., with whom Richard B. Stewart, Asst. Atty. Gen., Michael A. McCord, Atty., U.S. Dept. of Justice, and E. Donald Elliott, Gen. Counsel, U.S. E.P.A., were on the joint brief, for respondents in all cases. Lisa F. Ryan, Thomas R. Bartman and Roger J. Marzulla, Attys., U.S. Dept. of Justice, also entered appearances, for respondents.

       Jeffrey O. Cerar, with whom John Moore, for Zinc Corp. of America and

Page 732

Horsehead Resources Development Co.; John N. Hanson, Donald J. Patterson, Jr., Edward M. Green and Roderick T. Dwyer, for American Min. Congress; Karl S. Bourdeau, Steven F. Hirsch and Barton C. Green, for American Iron and Steel Institute; John T. Smith, II, for Chemical Mfrs. Ass'n; Richard A. Flye and Gordon D. Quin, for The Fertilizer Institute; Neil J. King, for The Intern. Metals Reclamation Co., Inc., John L. Wittenborn and William Guerry, for Steel Mfrs' Ass'n, were on the joint brief, for Industry intervenors in Nos. 88-1606, 88-1763, 88-1781, 88-1801, 89-1053, 89-1054 and 89-1064. Gary H. Baise also entered an appearance, for American Iron and Steel Institute.

       David R. Case was also on the brief, for intervenor, Hazardous Waste Treatment Council, in Nos. 88-1606, 88-1654, 88-1763, 88-1781, 89-1053, 89-1055 and 89-1056.

       Harold Himmelman and Karl S. Bourdeau also entered appearances, for intervenor, Mobil Oil Corp., in No. 88-1801.

       G. William Frick, James K. Jackson and Ralph J. Colleli, Jr., also entered appearances, for intervenor, American Petroleum Institute, in Nos. 88-1801 and 89-1054.

       Before WALD, Chief Judge, and EDWARDS and RUTH BADER GINSBURG, Circuit Judges.

       Opinion for the Court filed PER CURIAM.

       PER CURIAM:

       These consolidated petitions for review challenge various aspects of a final Environmental Protection Agency ("EPA" or "agency") rule promulgated under the authority of the Resource Conservation and Recovery Act of 1976 ("RCRA") Sec. 3004, 42 U.S.C. Sec. 6924. The rule sets out land disposal prohibitions and treatment standards for "First-Third" scheduled wastes ("First-Third Rule"), 53 Fed.Reg. 31,138 (Aug. 17 1988). 1

       The American Petroleum Institute, the American Iron and Steel Institute, the Chemical Manufacturers Association and the National Association of Metal Finishers (collectively "Industry Petitioners") challenge EPA's conclusion that the RCRA precludes the agency from considering land treatment, in conjunction with pretreatment, as an authorized method of treating hazardous wastes. Industry Petitioners also challenge EPA's abandonment of comparative risk analysis as a means of determining authorized treatment standards for hazardous wastes, claiming that the agency did not provide adequate reasons for abandoning this type of risk assessment.

       The Natural Resources Defense Council, Chemical Waste Management, Inc. and the Hazardous Waste Treatment Council (collectively "NRDC") challenge the part of the First-Third Rule that establishes treatment standards for K061 hazardous waste. NRDC claims that EPA has unlawfully exempted the slag residues that result from the "treatment" of K061 in zinc smelters from the RCRA's restrictions on land disposal of hazardous wastes.

       We agree with EPA that the RCRA does preclude land treatment in conjunction with pretreatment as a method of treating hazardous wastes. Additionally, we find that EPA provided adequate reasons for abandoning comparative risk analysis. However, because we find that EPA unlawfully exempted the residue produced from smelting K061 waste from the RCRA's restrictions on land disposal of hazardous wastes, we vacate that portion of the rule and remand to the agency for further rulemaking consistent with this opinion.

  1. BACKGROUND

    1. Overview

             Subtitle C of the RCRA establishes "a 'cradle to grave' regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste." United Technologies

      Page 733

      Corp. v. EPA, 821 F.2d 714, 716 (D.C.Cir.1987). Section 3001 of the RCRA, 42 U.S.C. Sec. 6921, directs EPA to promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste. In accordance with this directive, EPA has adopted a two-part definition of hazardous waste.

             First, EPA has published several lists of specific hazardous wastes ("listed wastes") in which EPA has described the wastes and assigned a "waste code" to each one. 40 C.F.R. Sec. 261, Subpart D. Second, EPA has identified four characteristics of...

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