American Iron and Steel Institute v. U.S. E.P.A., s. 88-1155

• Citation: 886 F.2d 390
• Decision Date: 22 September 1989
• Docket Number: Nos. 88-1155,88-1165,88-1156,88-1168 and 88-1169,88-1158,s. 88-1155
• Parties: , 280 U.S.App.D.C. 373, 20 Envtl. L. Rep. 20,027 AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, American Petroleum Institute, Edison Electric Institute, et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 390

886 F.2d 390

30 ERC 1393, 280 U.S.App.D.C. 373, 20

Envtl. L. Rep. 20,027

AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent,

American Petroleum Institute, Edison Electric Institute, et

al., Intervenors.

Nos. 88-1155, 88-1156, 88-1158, 88-1165, 88-1168 and 88-1169.

United States Court of Appeals, District of Columbia Circuit.

Argued May 16, 1989.

Decided Sept. 22, 1989.

Angus Macbeth, with whom Samuel I. Gutter, Washington, D.C., and Peggy L. O'Brien were on the brief, for petitioners Waste Management of North America and Chemical Waste Management in No. 88-1165.

William R. Weissman (for Edison Elec. Institute) and Karl S. Bourdeau (for American Iron & Steel Institute), with whom Gary H. Baise, Steven F. Hirsch, Washington, D.C., and Barton C. Green (for American Iron & Steel Institute), Richard A. Flye, Christian Volz, and Carole Stern, Washington, D.C. (for Fertilizer Institute), John F. Cermak (for PPG Industries), Douglas H. Green (for Edison Elec. Institute), G. William Frick and James K. Jackson, (for American Petroleum Institute), John N. Hanson, Donald J. Patterson, Jr., Washington, D.C., Aaron H. Goldberg, Edward M. Green, Roderick T. Dwyer, and Jeremiah J. Jewett III (for American Mining Congress and Solite Corp.) were on the joint brief, for petitioners/intervenors in Nos. 88-1155, 88-1156, 88-1158, 88-1168 & 88-1169.

Scott A. Schachter, Atty., Dept. of Justice, Washington, D.C., and Caroline Wehling, Atty., E.P.A. with whom Donald A. Carr, Atty., E.P.A. was on the brief, for respondent. Michael A. McCord, Atty., E.P.A., Columbus, Ohio, and Roger J. Marzulla, Atty., Dept. of Justice, Washington, D.C., also entered appearances for respondent.

Dean A. Calland and Donald C. Bluedorn II, Pittsburgh, Pa., were on the brief for petitioner Inland Steel Co. in No. 88-1168.

Thomas S. Llewellyn, Washington, D.C., entered an appearance for intervenor American Petroleum Institute in Nos. 88-1155, et al.

David R. Case, Washington, D.C., entered an appearance for amicus curiae Hazardous Waste Treatment Council in Nos. 88-1155, 88-1156 & 88-1158.

Before MIKVA and WILLIAMS, Circuit Judges, and WILL, ^* District Judge for the Northern District of Illinois.

Opinion for the court filed by Circuit Judge WILLIAMS.

Stephen F. WILLIAMS, Circuit Judge:

The Resource Conservation and Recovery Act ("RCRA"), Pub.L. No. 94-580, 90 Stat. 2795 (1976), created in its Subtitle C a system for control over the treatment, storage and disposal of hazardous wastes. RCRA Secs. 3001-13, 42 U.S.C. Secs. 6921-34 (1982) (current version at 42 U.S.C. Secs. 6921-39a (1982 & Supp. IV 1986); see also RCRA Sec. 1004(5), 42 U.S.C. Sec. 6903(5) (1982) (defining "hazardous waste"). While invariably described as a "cradle-to-grave" system, it in fact reaches (as we shall see) well beyond the grave. It required owners and operators of hazardous waste treatment, storage and disposal facilities, here generally referred to simply as facilities or treatment facilities, to secure operating permits from the Environmental Protection Agency, RCRA Secs. 3004-05; 42 U.S.C. Secs. 6924-25 (1982), or from a state holding EPA authorization to issue permits, RCRA Sec. 3006(b), 42 U.S.C. Sec. 6926(b) (1982). In addition, RCRA Subtitle D established a regulatory program for nonhazardous solid wastes, with primary enforcement by the states. RCRA Sec. 4001-09; 42 U.S.C. Secs. 6941-49 (current version at RCRA Secs. 4001-10, 42 U.S.C. Sec. 6941-49a (1982 & Supp. IV 1986) ¹). See generally United Technologies Corp. v. EPA, 821 F.2d 714 (D.C.Cir.1987); Environmental Defense Fund v. EPA, 852 F.2d 1309, 1310-11 (D.C.Cir.1988).

As originally enacted, RCRA "did not require permittees to take significant remedial action to correct past mismanagement of hazardous waste." United Technologies, 821 F.2d at 717. In 1984 Congress decisively changed that focus with the Hazardous and Solid Waste Amendments ("HSWA"), Pub.L. No. 98-616, 98 Stat. 3224 (1984). This greatly increased EPA's authority to require corrective action, even for releases that occurred before the HSWA was enacted.

In 1985 EPA adopted a somewhat skeletal set of regulations, implementing the HSWA in terms that largely tracked the statutory language. First Codification Rule, 50 Fed.Reg. 28,702 (July 15, 1985). Under attack here is its 1987 Final Second Codification Rule, 52 Fed.Reg. 45,788 (Dec. 1, 1987), which adds critical detail to the earlier work, and, in the judgment of petitioners and intervenors, goes well beyond EPA's statutory authority. Our jurisdiction to review the EPA's regulations flows from RCRA Sec. 7006(a), 42 U.S.C. Sec. 6976(a) (1982). We will not try to summarize our holding here, as it is almost impossible to state the issues intelligibly without more detail than a summary could reasonably bear.

I. BEVILL-BENTSEN WASTES

Many petitioners attack the regulations for their inclusion of so-called Bevill-Bentsen wastes among those subject to corrective action. We reject the claim. We read the Bevill-Bentsen provisions as intended merely to protect such wastes from undue burdens that might flow from their being overhastily classified as hazardous wastes; petitioners' reading of the statute would immunize them from burdens concededly imposed by Congress on nonhazardous wastes.

Congress in October 1980 adopted the Bevill and Bentsen amendments as part of the Solid Waste Disposal Act Amendments of 1980, Pub.L. No. 96-482, 94 Stat. 2334 (1980). The Bevill amendment, RCRA Sec. 3001(b)(3), 42 U.S.C. Sec. 6921(b)(3) (1982), exempted particular mining industry wastes--now known as Bevill wastes--from the hazardous waste controls in RCRA Subtitle C, pending further study by EPA as to their environmental and health effects and a possible determination by EPA as to whether to apply Subtitle C or not. The exemption takes the form of providing that

Notwithstanding [provisions authorizing the EPA to identify hazardous wastes to be subject to subtitle C regulation], each [Bevill] waste listed below shall ... be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subchapter....

42 U.S.C. Sec. 6921(b)(3)(A). The Bentsen amendment, RCRA Secs. 3001(b)(2)(A), (C), 8002(m), 42 U.S.C. Secs. 6921(b)(2)(A), (C), 6982(m) (1982), gave a similar exemption to oil, gas and geothermal production wastes--Bentsen wastes--except that if EPA determined that Subtitle C regulations were warranted, it was only to transmit them to Congress for possible adoption. RCRA Sec. 3001(b)(2)(C), 42 U.S.C. Sec. 6921(b)(2)(C) (1982). See generally Environmental Defense Fund v. EPA, 852 F.2d at 1314-15; Environmental Defense Fund v. EPA, 852 F.2d 1316, 1318-20 (D.C.Cir.1988).

When the EPA conducted the regulatory determinations required by the two amendments, it decided (with an exception) that both types of wastes should be regulated only as Subtitle D nonhazardous solid wastes. See 53 Fed.Reg. 25,446 (July 6, 1988) (Bentsen waste determination); cf. Alaska Center for the Environment v. Reilly, No. 88-1715, Order (D.C.Cir. Apr. 27, 1989) (dismissing challenge to Bentsen determination) pet. for reh'g filed June 12, 1989; Environmental Defense Fund v. EPA, 852 F.2d 1309 (D.C.Cir.1988) (upholding EPA decision regarding extraction and beneficiation mining wastes); Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C.Cir.1988) (ordering EPA to come to decision on mining processing wastes); American Mining Congress v. EPA, No. 88-1835, et al. (D.C.Cir. filed Nov. 29, 1988) (challenge to later EPA decision to list certain processing wastes as hazardous wastes).

The issue is whether these wastes are reached by Sec. 3004(u) of RCRA, the source of EPA's authority to require corrective action:

Standards promulgated under this section [RCRA Sec. 3004, 42 U.S.C. Sec. 6924] shall require, and a permit issued after November 8, 1984, by the Administrator or a State shall require, corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subchapter, regardless of the time at which waste was placed in such unit....

RCRA Sec. 3004(u), 42 U.S.C. Sec. 6924(u) (Supp. IV 1986) (emphasis added).

The Final Second Codification Rule allows the agency to require sampling and study to determine the risk of release of hazardous wastes or constituents, see 52 Fed.Reg. 45,788, 45,799, codified at 40 CFR Sec. 270.14(d), and to require appropriate corrective action, see id. at Sec. 264.101. As Sec. 3004(u) states, any solid waste management unit ("SWMU") at a facility seeking a permit is susceptible to these requirements, and the preamble to the Final Second Codification Rule specifies that such units are not exempt merely because Bevill-Bentsen wastes are the only possible source of hazardous constituents. The preamble states explicitly that EPA intends to exercise its Sec. 3004(u) authority "on a case-by-case basis, writing permit conditions to require monitoring (or modeling) for any media [sic] where it finds that a SWMU is likely to release hazardous constituents that pose a threat to human health and the environment." 52 Fed.Reg. at 45,789/2. In confirming that this coverage encompasses Bevill-Bentsen wastes, the EPA stressed that Sec. 3004(u) called for clean-up not only of hazardous "wastes" but also of hazardous "constituents." Id. at 45,790/1. It noted that the commenter asserting exemption of Bevill-Bentsen wastes had conceded that the section covered nonhazardous solid wastes, id.; counsel confirmed the concession at oral argument. Thus the issue boils down to whether the exempting language is powerful enough to afford Bevill-Bentsen wastes a uniquely privileged position, free from corrective action requirements imposed on all other nonhazardous solid wastes generally regulated exclusively under Subtitle D.

It is quite...