Chemical Mfrs. Ass'n v. U.S. E.P.A.
| Decision Date | 16 November 1990 |
| Docket Number | 86-1434 and 89-1686,Nos. 86-1433,s. 86-1433 |
| Citation | 919 F.2d 158 |
| Parties | , 287 U.S.App.D.C. 49, 59 USLW 2344, 21 Envtl. L. Rep. 20,365 CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent (Two Cases). |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Carole Stern, with whom Richard A. Flye, Washington, D.C., was on the brief, for petitioner, Union Carbide Chemicals and Plastics Co., Inc., in Nos. 86-1434 and 89-1686, and intervenor in No. 86-1433. Christian Volz, San Francisco, Cal., and Peter L. Gray, Washington, D.C., also entered appearances for petitioner.
John T. Smith, II, David F. Zoll and Kenneth M. Kastner, Washington, D.C., entered appearances for petitioner, Chemical Mfrs. Ass'n, in No. 86-1433.
W. Christian Schumann, Atty., U.S. Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., Steven E. Silverman, Acting Asst. Gen. Counsel and Lee R. Tyner, Atty., U.S. E.P.A., were on the brief, for respondent in Nos. 86-1433, 86-1434 and 89-1686. Dov Weitman, Atty., U.S. E.P.A., Bradley S. Bridgewater and Eileen T. McDonough, Attys., U.S. Dept. of Justice, also entered appearances for respondent.
Before WALD, Chief Judge, MIKVA and RUTH B. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Petitioner Union Carbide Chemicals and Plastics Company, Inc. ("Union Carbide") 1 challenges certain aspects of two sets of regulations governing the time for closure of hazardous waste facilities promulgated by the Environmental Protection Agency ("EPA") pursuant to its authority under Sec. 3004(a) of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Sec. 6924(a). Union Carbide asserts that the regulations are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the Administrative Procedure Act ("APA"). 5 U.S.C. Sec. 706(2)(A). More specifically, Union Carbide alleges that: (1) the EPA violated the express intent of Congress in promulgating the contested regulations; and (2) the EPA failed to justify adequately the regulatory choices it made, acted irrationally and inconsistently in adopting the regulations, and applied the wrong legal standard in assessing the need for the regulations. We conclude that the challenged regulations are consistent with congressional intent and that the EPA did not act arbitrarily or capriciously in promulgating them. Accordingly, we deny the petitions for review.
Subtitle C of the RCRA, 42 U.S.C. Secs. 6921-39b, creates a comprehensive framework for the treatment and disposal of hazardous wastes. Under Sec. 3004(a) of the RCRA, 42 U.S.C. Sec. 6924(a), the EPA is required to "promulgate regulations establishing such performance standards [for hazardous waste facilities] as may be necessary to protect human health and the environment." Under Sec. 3005(a) of the RCRA, 42 U.S.C. Sec. 6925(a), compliance with the performance standards promulgated by the EPA is required for issuance of a permit authorizing the construction or operation of a hazardous waste facility. Facilities already in operation as of November 19, 1980, known as "interim status" facilities, are required to meet all applicable performance standards promulgated under Sec. 3004(a) and to apply for permits if they wish to remain in operation, but they are to be treated as having been issued a permit until final administrative action has been taken on their permit applications. RCRA Sec. 3005(e), 42 U.S.C. Sec. 6925(e).
In May 1980, the EPA promulgated final regulations under the authority of Sec. 3004(a) pertaining to the closure of interim status hazardous waste facilities. See 45 Fed.Reg. 33,242-43 (May 19, 1980). In January 1981, the EPA issued final closure regulations for "permitted" facilities (i.e., those facilities actually issued permits under the RCRA); these regulations also revised the regulations governing interim status facilities. See 46 Fed.Reg. 2849-51, 2875-77 (Jan. 12, 1981) (the "1981 closure regulations"). The regulations required both permitted and interim status facilities to treat, remove, or dispose of all hazardous wastes within 90 days after receiving the final volume of "hazardous wastes." 40 C.F.R. Secs. 264.113(a), 265.113(a) (1981). 2 Companion provisions required facilities to complete closure within 180 days after receiving the final volume of "wastes." 40 C.F.R. Secs. 264.113(b), 265.113(b) (1981). 3 These provisions remained essentially unchanged until 1986.
Congress extensively modified the RCRA in the Hazardous and Solid Waste Amendments of 1984 (the "1984 Amendments" or "Amendments"). A major purpose of the 1984 Amendments was to discourage the use of land facilities for the storage and disposal of hazardous wastes. See RCRA Sec. 1002(b)(7), 42 U.S.C. Sec. 6901(b)(7). Among the specific provisions added by the Amendments was one requiring new surface impoundments and landfills used for the management of hazardous wastes to meet certain minimum technological requirements, including the use of double liners and leak detection systems. RCRA Sec. 3004(o ), 42 U.S.C. Sec. 6924(o ). A related provision requires that, with certain exceptions not relevant here, surface impoundment facilities that were classified as interim status on November 8, 1984, must not "receive, store, or treat hazardous waste" after November 8, 1988, unless they are retrofitted to meet the minimum technological requirements applicable to permitted facilities. RCRA Sec. 3005(j), 42 U.S.C. Sec. 6925(j).
In March 1985, the EPA proposed revising Secs. 264.113(b) and 265.113(b) to mandate closure within 180 days after the final receipt of "hazardous wastes," rather than within 180 days after the final receipt of "wastes," as provided in the original regulations. The Chemical Manufacturers Association ("CMA") and Union Carbide argued in comments to the EPA on the proposed regulations that it was environmentally unnecessary to require closure of facilities that cease receiving hazardous wastes and intend to receive only non-hazardous wastes thereafter. They also argued that the proposed regulations were inconsistent with the 1984 Amendments because the legislative history of those amendments showed that Congress intended to authorize the receipt of non-hazardous wastes by unretrofitted surface impoundments that have ceased to receive hazardous wastes. See Comments of Union Carbide Corporation (May 14, 1985), reprinted in Joint Appendix ("J.A.") at 33-39; Comments of the Chemical Manufacturers Association (May 20, 1985), J.A. 40-62.
The EPA promulgated a final set of regulations in May 1986 (the "1986 closure regulations") that included the contested revisions and made certain other minor changes to the prior regulations. See 51 Fed.Reg. 16,445, 16,452-53 (May 2, 1986). 4 In response to the comments from Union Carbide and CMA, the EPA asserted that the closure provisions were environmentally necessary and rejected the argument that the revisions were inconsistent with Congress' intent in enacting the 1984 Amendments. Id. at 16,432. In addition, the EPA argued that the revisions merely clarified an ambiguity in the regulations as originally promulgated, which it claimed were in fact intended to require hazardous waste facilities to close within 180 days of their final receipt of hazardous waste. Id. at 16,431. Union Carbide, by contrast, asserts that the absence of the word "hazardous" from paragraph (b) of each relevant provision prior to the 1986 revisions allowed those facilities that stopped receiving hazardous wastes to continue receiving non-hazardous wastes, so long as they complied with the requirements of paragraph (a).
In July 1986, Union Carbide and CMA filed two of the petitions for review consolidated in this proceeding. The parties began settlement negotiations shortly thereafter, leading this court to stay proceedings pending the results of the negotiations. In June 1988, the EPA proposed a set of amendments to the 1986 closure regulations that attempted to address petitioners' concerns. After considering comments from petitioners and others on the proposed amendments, the EPA revised them in certain particulars and, in August 1989, promulgated them in final form (the "1989 closure regulations"). As amended, Secs. 264.113 and 265.113 now provide that both permitted and interim status surface impoundments may continue operations after ceasing to receive hazardous wastes so long as they either meet the minimum technological requirements imposed by the 1984 Amendments, or remove all significant amounts of accumulated hazardous wastes. 5
In November 1989, Union Carbide, unsatisfied with the EPA's action, filed a petition for review of the 1989 closure regulations. That petition was subsequently consolidated with the two filed previously, and all three petitions are now before this court.
Union Carbide's first challenge to the 1986 and 1989 closure regulations is that they contradict Congress' express intent in enacting the 1984 Amendments. The EPA responds that the 1984 Amendments left untouched its pre-existing authority under Sec. 3004(a) of the RCRA to promulgate regulations establishing standards for hazardous waste facilities that it finds necessary to protect human health and the environment. The EPA therefore concludes that it had ample statutory authority to issue both sets of regulations. 6
In evaluating the parties' arguments, we must follow the rules laid down in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, we inquire "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. at 2781...
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