907 F.2d 1179 (D.C. Cir. 1990), 88-1835, American Min. Congress v. U.S. E.P.A.

Docket Nº:88-1835, 88-1837 to 88-1839, 88-1843 and 88-1869.
Citation:907 F.2d 1179
Party Name: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, Responde
Case Date:July 10, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1179

907 F.2d 1179 (D.C. Cir. 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.

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

United States Court of Appeals, District of Columbia Circuit.

July 10, 1990

Page 1180

[Copyrighted Material Omitted]

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       Argued May 1, 1990.

       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 "haz

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ardous" six wastes generated from metal smelting operations. Petitioners argue that the relisting was beyond the agency's statutory authority, that in several respects the agency failed to offer an adequate reasoned explanation for its decision, and that the agency's decision to list the materials was promulgated without adequate opportunity for notice and comment.

       We find petitioners' first contention to be without merit. In American Petroleum Inst. v. EPA, 906 F.2d 729, 740-742 (D.C.Cir.1990), this court expressly rejected the statutory authority argument on which petitioners rely here. We also find no merit in petitioners' claims that the agency failed to satisfy the notice-and-comment requirements of the Administrative Procedure Act ("APA"). The 1988 Rule reinstated a rule that the agency had withdrawn in 1980; however, petitioners had two opportunities for notice and comment before the 1988 Rule was promulgated. This was more than enough to satisfy the requirements of the APA. We therefore reject the petitions for review on these two issues.

       As for petitioners' contentions regarding the adequacy of the agency's justifications for the 1988 Rule, we find merit in certain of the claims that have been advanced. Accordingly, we are constrained to remand for further consideration and explanation by the agency with respect to the bases for the relistings of certain of the smelting wastes.

  1. BACKGROUND

    1. Statutory and Regulatory Framework

             Subtitle C of RCRA, 42 U.S.C. Secs. 6921-6939b (1982 & Supp. V), requires EPA to create a comprehensive regulatory scheme for the treatment, storage, and disposal of hazardous wastes. Under RCRA, EPA must "develop and promulgate criteria for identifying the characteristics of" those "solid" wastes 2 that are also "hazardous" wastes. 3 See 42 U.S.C. Sec. 6921(a), (b).

             Pursuant to this statutory mandate, the agency has adopted a scheme under which it deems a solid waste hazardous if the waste meets either of two conditions. One condition is that the agency has, after a rulemaking proceeding, specifically listed the waste as hazardous. See 40 C.F.R. pt. 261, Subpart D (1989) (Lists of Hazardous Wastes). 4 The other condition is that the waste satisfies one or more of the following criteria that the agency has, by regulation, identified for hazardous waste: ignitability, corrosivity, reactivity, and extraction procedure toxicity. See 40 C.F.R. Secs. 261.11, 261.20-.24, 261.31-.32; see also Hazardous Waste Treatment Council v. EPA, 861 F.2d 270, 271 (D.C.Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989).

             Either of these two conditions is sufficient for the agency to deem a "solid" waste "hazardous." When the agency lists or identifies a waste as hazardous, the waste's treatment, storage, and disposal is usually regulated by permit. See 42 U.S.C. Secs. 6922-6925.

    2. Procedural Background

             Both this court and the agency have fully rehearsed the complex procedural history of this case. See Environmental Defense

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      Fund v. EPA, 852 F.2d 1316, 1318-24 (D.C.Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989); 1988 Rule, 53 Fed.Reg. at 35,412-13. We therefore need reconstruct here only a skeletal portion of the history.

             In 1980, after a rulemaking, the agency listed as "hazardous" six wastes ("six wastes") generated from primary metal smelters. See 45 Fed.Reg. 33,066, 33,124, 47,832-34 (1980) ("1980 Rule"). EPA listed the wastes pursuant to 40 C.F.R. Sec. 261.11(a)(3), because they contained one or more of the hazardous constituents listed in 40 C.F.R. pt. 261, App. VIII. The six wastes are as follows:

             (1) Waste from Primary Copper Smelting and Refining, EPA Hazardous Waste No. K064 ("K064");

             (2) Waste from Primary Lead Smelting, EPA Hazardous Waste No. K065 ("K065");

             (3) Waste from Primary Zinc Smelting and Refining, EPA Hazardous Waste No. K066 ("K066");

             (4) Waste from Primary Aluminum Reduction (spent potliner), EPA Hazardous Waste No. K088 ("K088");

             (5) Waste from Ferrochromiumsilicon Production, EPA Hazardous Waste No. K090 ("K090"); and

             (6) Waste from Ferrochromium Production, EPA Hazardous Waste No. K091 ("K091").

             In October of 1980, in response to congressional enactment of the so-called "Bevill Amendment," EPA suspended its listing of the six wastes. See 46 Fed.Reg. 4614-15, 27,473 (1981); see also EDF v. EPA, 852 F.2d at 1319-31 (discussing Bevill Amendment and EPA response thereto). In 1985, EPA proposed a new rule that would, inter alia, involve relisting of the six wastes. See 50 Fed.Reg. 40,292, 40,295 (1985) ("1985 Proposal"). In publishing this proposal, the agency stated that:

      [i]f any person disagrees with the listing of [the six wastes] based on additional information about their hazard, i.e., information which does not appear in the rulemaking record for the 1980 listings, they should explain the specific basis for their objections and provide additional information.

             Id.

             The agency never promulgated a rule based on the 1985 Proposal, and did not at that time relist the six wastes as hazardous. In EDF v. EPA, the two intervenor-applicants in the case now before us, the Environmental Defense Fund and the Hazardous Waste Treatment Council, pursued a judicial challenge to have the agency relist the six wastes. Granting those petitioners' requests, the court ordered the agency to "relist the six hazardous smelter wastes by August 31, 1988." See 852 F.2d at 1331. The agency complied with this order when it relisted the six wastes pursuant to the 1988 Rule. See 40 C.F.R. Sec. 261.32 (1989) (listing six wastes as "hazardous wastes from specific sources").

             In promulgating the 1988 Rule, however, the agency did not interpret the court's order in EDF v. EPA as a requirement that the agency list the wastes, but rather as an order to cease treating the wastes as coming within the scope of the Bevill Amendment. Thus, EPA stated that its "decision to list these wastes today is based on its evaluation of the listing criteria (i.e., these wastes are hazardous) as well as the court finding that these wastes are not Bevill wastes," 1988 Rule, 53 Fed.Reg. at 35,413 n. 3, and that its "determination that these wastes are hazardous is based on its evaluation of the hazardousness of these wastes in 1980," id. at 35,417.

             The agency also noted that, since 1980, it had "received additional information regarding these six wastes," partly in response to the agency's solicitation of comments regarding the 1985 Proposal. See id. In its view, "[t]he post-1980 data submitted to EPA [were] relevant primarily to issues other than the inherent hazardousness of the six wastes." Id. Nonetheless, the agency stated that,

             [s]ince the issuance of the Court's opinion, EPA has conducted a review of some of the waste characterization data received since 1980. While EPA did not, in light of the short time-frame for publication

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      of this rule, exhaustively evaluate all of the post-1980 waste characterization data submitted, the review that was conducted tends to corroborate and confirm that the six waste streams meet the criteria for hazardousness found in section 3001(a) of RCRA. EPA's review suggests that no data have been submitted which would clearly contradict EPA's 1980 decision to list the six smelter wastes, i.e., no...

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