Hazardous Waste Treatment Council v. Reilly, 90-1443
| Decision Date | 26 July 1991 |
| Docket Number | No. 90-1443,90-1443 |
| Citation | 938 F.2d 1390 |
| Parties | , 291 U.S.App.D.C. 131, 60 USLW 2098, 21 Envtl. L. Rep. 21,228 HAZARDOUS WASTE TREATMENT COUNCIL and Laidlaw Environmental Services, Inc., Petitioners, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Respondents, State of North Carolina and Friends of the Earth, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Environmental Protection Agency.
David R. Case, for petitioners.
W. Christian Schumann, Atty., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., and Joseph L. Friedman, Atty., E.P.A. ("EPA"), were on the brief, for respondents.
Daniel F. McLawhorn, Sp. Deputy Atty. Gen. for North Carolina (for the State of N.C.), Rena I. Steinzor and David Kolker (for Friends of the Earth), and Thomas D. Schroeder (for Counties of Robeson and Scotland and City of Lumberton, North Carolina) were on the joint brief, for intervenors.
John D. Runkle entered an appearance for intervenor Conservation Council of North Carolina, Inc.
Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
North Carolina has enacted a statute that requires a thousand-fold dilution of discharges from commercial hazardous waste treatment facilities into surface waters above public drinking water intakes. Petitioners contend that this legislation makes the State's hazardous waste treatment program inconsistent with programs administered by the federal government and other States and therefore ineligible for authorization under the Resource Conservation and Recovery Act. The Environmental Protection Agency concluded that its regulations did not require a finding that the North Carolina law was inconsistent and declined to withdraw authorization. We hold that the EPA's interpretation of its regulation is permissible and deny the petition for review.
The Resource Conservation and Recovery Act ("RCRA") provides a comprehensive federal program for the management of hazardous waste but permits States to administer their own programs with the authorization of the EPA. See 42 U.S.C. Sec. 6926 (1988). The agency, however, may not approve a state program if
(1) such State program is not equivalent to the Federal program under this subchapter, (2) such program is not consistent with the Federal or State programs applicable in other States, or (3) such program does not provide adequate enforcement of compliance with the requirements of this subchapter.
Id. Sec. 6926(b). If a state program falls into one of these categories, the EPA must notify the State of the deficiency; and if it is not corrected within ninety days, the EPA "shall withdraw authorization of such program." Id. Sec. 6926(e). A State may nevertheless impose requirements that are more stringent than those established by EPA regulations. See id. Sec. 6929 ("Retention of State authority").
RCRA does not elaborate on the meaning of "consistent." That requirement, however, is addressed in section 271.4 of the EPA regulations:
To obtain approval, a State program must be consistent with the Federal program and State programs applicable in other States and in particular must comply with the provisions below....
(a) Any aspect of the State program which unreasonably restricts, impedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage, or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsistent.
(b) Any aspect of State law or of the State program which has no basis in human health or environmental protection and which acts as a prohibition on the treatment, storage or disposal of hazardous waste in the State may be deemed inconsistent.
40 C.F.R. Sec. 271.4 (1990). The preamble to the regulations explains that just as a State's ban on interstate transport of hazardous waste could violate the commerce clause under City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), so could a ban on the treatment of waste:
A State that refuses entirely to allow a necessary part of national commerce--the disposal of hazardous wastes--to take place within its boundaries is impeding the flow of interstate commerce just as much as a State that refuses to allow the transportation of those wastes.... Accordingly, State programs which contain provisions that prohibit treatment, storage or disposal of hazardous waste within the State, will be deemed inconsistent if the prohibition has no basis in human health or environmental protection.
Consolidated Permit Regulations, 45 Fed.Reg. 33,290, 33,395 (1980).
Petitioners assert that North Carolina has created just such an inconsistency by enacting Senate Bill 114 ("Act"). The Act provides:
No permit for any new commercial hazardous waste treatment facility shall be issued or become effective ... until the applicant has satisfied the [North Carolina Department of Environment, Health, and Natural Resources] that such facility meets, in addition to all other applicable requirements, the following requirements:
....
The facility shall not discharge indirectly through a publicly owned treatment works ... a hazardous or toxic substance into a surface water that is upstream from a public drinking water supply intake in North Carolina, unless there is a dilution factor of 1000 or greater, irrespective of any dilution occurring in a wastewater treatment plant, at the point of discharge into the surface water under 7Q10 [low flow] conditions.
....
If [the EPA] concludes ... that any provision of this act will result in the withdrawal of approval of the North Carolina hazardous waste program, such provision is void.
N.C. Gen.Stat. Sec. 130A-295.01(b) (1989). Petitioners, Laidlaw Environmental Services, Inc., and the Hazardous Waste Treatment Council, charge that this provision is an attempt by North Carolina to shirk its share of a national burden: the treatment of hazardous wastes.
Laidlaw, formerly known as GSX Chemical Services, Inc., seeks to construct a large facility ("GSX facility") to treat liquid hazardous wastes in Laurinburg, North Carolina. More than half of these wastes would originate outside the State. While most treatment facilities can treat either organic or inorganic wastes but not mixtures of the two, the GSX facility represents a unique, state-of-the-art design that is capable of treating complex mixtures of both kinds by linking twelve different tank-based treatment processes in any combination. If left untreated, these wastes are generally disposed of by incineration or deep-well injection.
The GSX facility was designed to discharge up to 500,000 gallons of wastewater per day through a local, publicly owned treatment works that, in turn, discharges its wastewater into the Lumber River, about thirty miles upstream from the drinking water intake of Lumberton, North Carolina. The draft permit prepared under RCRA included conditions intended to safeguard Lumberton's drinking water.
Despite these conditions, senators representing local constituencies introduced a series of bills that would block construction of the plant. After the EPA warned that bills imposing a moratorium on the issuance of treatment-facility permits would jeopardize authorization of the State's hazardous waste program, the legislature adopted the existing bill.
In essence, Senate Bill 114 requires that a facility's discharge be diluted a thousandfold by the waters of the receiving river, without regard to any dilution that may have occurred prior to discharge. It does not apply to facilities downstream from public drinking water intakes or to facilities that do not discharge into surface waters. To be in compliance with the Act, a facility located at Laurinburg could discharge no more than 72,000 gallons a day. This limitation renders the proposed facility uneconomic.
In response to Senate Bill 114, GSX and the Hazardous Waste Treatment Council petitioned the EPA to withdraw approval of North Carolina's program. After informal investigation, the EPA commenced withdrawal proceedings. The EPA charged that because the statutory dilution requirement was arbitrary and failed to take into account the actual concentration of chemicals in the wastewater, the Act was not based on the protection of human health or the environment. The EPA also alleged that the Act would prohibit GSX and others from operating at Laurinburg and "numerous other locations within the State," thus "limit[ing] the ability of existing authorities of the State to be consistent with the federal program as set forth in 40 CFR 271.4." Order to Commence Proceedings, 52 Fed.Reg. 43,903, 43,905 (1987).
The Administrative Law Judge ("ALJ") determined that withdrawal of approval was not warranted. See Recommended Decision, Proceedings to Determine Whether to Withdraw Approval of North Carolina's Hazardous Waste Management Program (Apr. 11, 1990) ("ALJ Decision"). This determination rested on several conclusions. First, he found that Senate Bill 114 did not unreasonably restrict or operate as a ban on the free movement of hazardous waste across North Carolina's borders within the meaning of paragraph (a) of section 271.4 of the regulations. Second, he found that the Act did not fall within paragraph (b) because (1) it had a basis in human health and environmental protection; and (2) it did not prohibit the treatment of hazardous waste within the State because it permitted the construction of facilities of the capacity and type proposed by GSX at other locations within the State. Id. at 105, 99. The ALJ added that as paragraph (b) provides that a program in violation of its terms "may be deemed...
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