Chemical Waste Management, Inc. v. U.S. E.P.A.

Decision Date24 November 1992
Docket Number90-1275,No. 90-1230,90-1413,90-1416,90-1423,90-1414,90-1410,90-1303,Nos. 90-1245,90-1314,90-1417,90-1404,90-1330,90-1230,s. 90-1245
Citation976 F.2d 2
Parties, 298 U.S.App.D.C. 54, 61 USLW 2219, 23 Envtl. L. Rep. 20,024 CHEMICAL WASTE MANAGEMENT, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Zinc Corporation of America, et al., Intervenors. , et al. Complex, and 90-1442.
CourtU.S. Court of Appeals — District of Columbia Circuit

Edwin H. Seeger and Kurt E. Blase, for petitioner Exide Corp., Inc., in No. 90-1303.

Paul E. Gutermann and John N. Moore, for petitioners Horsehead Resource Development Co., Inc., and Zinc Corp. of America in No. 90-1413 and intervenors in Nos. 90-1404, 90-1410, 90-1414, 90-1416, 90-1417, and 90-1423.

Gwendolyn G. Logan, Stephen E. Roady, and M. Barry Meyer, for petitioner the Aluminum Ass'n in No. 90-1442 and intervenor in No. 90-1245.

Mary Elizabeth Ward, Atty., U.S. Dept. of Justice, and Steven E. Silverman, Atty., E.P.A., with whom Barry M. Hartman, Acting Asst. Atty. Gen., Gretchen Slosser Pirasteh, Atty., U.S. Dept. of Justice, and Raymond Ludwiszewski, Acting Gen. Counsel, EPA, were on the brief, for respondents in all cases. Richard B. Stewart, Peter W. Colby, Christopher S. Vaden, Thomas R. Bartman, and Mandan Kenkermath also entered appearances, for respondent.

Robert F. VanVoorhees, for intervenors Chemical Manufacturers Ass'n, et al.

Aaron H. Goldberg, for intervenors American Mining Congress, et al.

Gerald L. Richman and Paul M. Donovan entered appearances, for intervenor Chlorine Institute in all cases except No. 90-1230.

Robert N. Steinwurtzel and Jeffrey S. Halik entered appearances, for intervenors Secondary Lead Smelters Ass'n, Inc., and Ass'n of Battery Recyclers in Nos. 90-1245 and 90-1314.

Corinne A. Goldstein and Guy V. Johnson entered appearances, for intervenors National Ass'n of Metal Finishers and E.I. duPont deNemours & Co. in No. 90-1245.

David B. Weinberg and Kurt J. Olson entered appearances, for intervenor Battery Council Intern. in all cases except No. 90-1230.

Leonard A. Miller and Robert S. Taylor entered appearances, for intervenor Allied-Signal, Inc., in No. 90-1245 C. Howard Hardesty, Jeffrey S. Halik, and P. Burton Gray entered appearances, for intervenor Institute of Makers of Explosives in Nos. 90-1245 and 90-1330.

Edwin H. Seeger, Kurt E. Blase and Michael A. Poling entered appearances, for intervenors Lead Industries Ass'n, Inc., and Cadmium Council, Inc., in Nos. 90-1245 and 90-1417.

Carole Stern entered appearances, for intervenors Thiakol Corp. and Olin Corp. in Nos. 90-1275 and 90-1303.

Before EDWARDS, BUCKLEY, and HENDERSON, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

The Hazardous and Solid Waste Amendments of 1984 instituted a ban on the land disposal of classes of hazardous wastes unless certain conditions are met. Those amendments require the Environmental Protection Agency to follow a phased schedule for implementing the ban. In this case we consider various challenges to regulations implementing the final portion of this program, the so-called "third-third" rule, which largely covers the land disposal of wastes deemed hazardous because they possess certain defined characteristics.

Various petitioners raise multi-faceted challenges. A group of industry trade associations and companies 1 (collectively, "industry petitioners") seek review of regulations mandating levels of treatment before land disposal that go beyond the removal of the attribute that led to the waste's classification as hazardous. These petitioners claim that the EPA lacked authority under the statute to require treatment to such levels. The Fertilizer Institute raises procedural and substantive objections to provisions that bar dilution of certain wastes as a form of treatment prior to discharge into the waters of the United States from treatment facilities licensed under the Clean Water Act. Finally, three companies attack the imposition of new testing requirements at disposal facilities as arbitrary and insufficiently clear.

We deny each of these petitions for review. Sections 3004(g)(5) and (m) of the Resource Conservation and Recovery Act ("RCRA") 2 (which are reprinted in Appendix A hereto) give the EPA the statutory authority to mandate the treatment of wastes to levels beyond those at which the wastes present the characteristics that caused them to be deemed hazardous. The EPA provided adequate notice of its intent to bar dilution of certain hazardous wastes at water treatment facilities that meet the standards of the Clean Water Act facilities. The regulations provide sufficient guidance as to how this part of the rule will work, and the distinction drawn between types of hazardous wastes appears reasonable. The challenge by the individual companies to testing protocols established in this rule is rejected. The procedures are both clear and reasonable.

Several environmental organizations, as well as the Hazardous Waste Treatment Council, an association representing companies that treat hazardous waste (collectively, "NRDC petitioners"), present different objections. They assert that (1) the new rule's "deactivation" treatment standard impermissibly allows the dilution, rather than treatment with specified technologies, of many characteristic wastes prior to land disposal; (2) the rule authorizes placement of untreated formerly characteristic wastes in surface impoundments within Clean Water Act treatment systems, or into underground injection wells, in violation of RCRA; (3) it arbitrarily created treatment standards for chromium and lead wastes; and (4) the rule provides an exception to treatment standards for wastes burned in industrial furnaces along with wastes exempted The petitions brought by NRDC petitioners are granted in part and denied in part. Under the statute, dilution of characteristic hazardous wastes may constitute treatment, but only if no hazardous constituents are present following dilution that would endanger human health or the environment. The EPA concedes that dilution will not attain this result for certain characteristic wastes. For others, it has not made clear that dilution will meet the requirements for treatment. The standard is therefore vacated as to those wastes. The dilution of wastes in Clean Water Act facilities is acceptable so long as the toxicity of the waste discharged from the facility is minimized or eliminated consistent with RCRA. Similarly, disposal of wastes in underground injection wells may occur as long as the hazardous characteristics have been eliminated and any health and environmental dangers posed by hazardous constituents of the wastes are minimized.

                by the Bevill Amendment that violates that provision.   In addition, the Council and Chemical Waste Management, Inc., a large waste disposal company, challenge certain testing procedures imposed by the regulations as impermissibly vague
                

We remand the lead and chromium standards because the EPA appears to have relied on data that does not support its conclusions. We also remand the exemption from regulation under Subtitle C of RCRA of wastes burned with wastes exempted under the Bevill Amendment for consideration in an ongoing rulemaking addressing that question. Finally, Chemical Waste Management's petition for review of test compliance procedures is denied. Testing procedures will be embodied in permits. Uncertainties over the standards can be resolved in the permit-writing process.

                                               TABLE OF CONTENTS
                I.    STATUTORY AND REGULATORY BACKGROUND ................................... 7
                II.   TREATMENT STANDARDS FOR CHARACTERISTIC WASTES ......................... 9
                      A
                      Proposed Rule ......................................................... 9
                      B.    Final Rule ..................................................... 11
                      C.    Standard of Review
...

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