Chemical Waste Management, Inc. v. U.S.E.P.A.
| Decision Date | 21 April 1989 |
| Docket Number | 88-1604,88-1592,BROWNING-FERRIS,88-1591,Nos. 88-1581,88-1578,88-1600,s. 88-1581 |
| Citation | 869 F.2d 1526,276 U.S.App. D.C. 207 |
| Parties | , 276 U.S.App.D.C. 207, 57 USLW 2579, 19 Envtl. L. Rep. 20,641 CHEMICAL WASTE MANAGEMENT, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Hazardous Waste Treatment Council, American Mining Congress, American Iron and Steel Institute, The International Metals Reclamation Company, Inc., Intervenors. HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Chemical Manufacturers Association, American Petroleum Institute, American Mining Congress, American Iron and Steel Institute, The International Metals Reclamation Company, Inc., Intervenors. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Hazardous Waste Treatment Council, Intervenor.INDUSTRIES, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION, INC. and Waste Management of North America, Inc., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Lee M. Thomas, Administrator, Respondents, Hazardous Waste Treatment Council, Intervenor. AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. AMERICAN WOOD PRESERVERS INSTITUTE, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. E.I. DU PONT DE NEMOURS & COMPANY, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Hazardous Waste Treatment Council, Intervenor. MONSANTO COMPANY, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. The DOW CHEMICAL COMPANY, Petitioner v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent AMERICAN MINING CONGRESS, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. ROSS INCINERATION SERVICES, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Americ |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Angus Macbeth and Richard A. Flye, with whom Lawrence S. Ebner and John C. Chambers, Jr., Washington, D.C., were on the brief, for petitioners.
J. Brian Molloy, Douglas H. Green and Joan Z. Bernstein, Washington, D.C., also entered appearances for petitioner in No. 88-1581.
David R. Case, Washington, D.C., also entered an appearance, for petitioner in No. 88-1578 and for intervenor, Hazardous Waste Treatment Council, in Nos. 88-1591, 88-1581, 88-1600, 88-1643.
John T. Smith II, Washington, D.C., also entered an appearance, for petitioner in Nos. 88-1591, 88-1643, 88-1607, 88-1721, and for intervenor Chemical Mfrs. Ass'n in No. 88-1578.
Kevin A. Gaynor, Washington, D.C., also entered an appearance, for petitioner in No. 88-1592.
Samuel I. Gutter, Washington, D.C., also entered an appearance, for petitioner in No. 88-1600.
Steven F. Hirsch and Barton C. Green, Washington, D.C., also entered appearances, for petitioner in Nos. 88-1604, 88-1665.
Karl S. Bourdeau also entered an appearance for petitioner in Nos. 88-1604, 88-1655 and 88-1735.
David F. Zoll, Washington, D.C., also entered an appearance, for petitioner in No. 88-1607 and for intervenor, Chemical Mfrs. Ass'n in No. 88-1578.
John N. Hanson and Edward M. Green, Washington, D.C., also entered appearances, for petitioner in No. 88-1736 and for intervenor American Mining Congress in No. 88-1581.
Richard D. Panza and Thomas A. Downie, Lorain, Ohio, also entered appearances, for petitioner in No. 88-1784.
Daniel S. Goodman, Atty., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., Dept. of Justice, and Steven E Silverman, Atty., U.S. E.P.A., Washington, D.C., were on the brief, for respondent.
Lisa F. Ryan, Atty., Dept. of Justice, Washington, D.C., also entered an appearance, for respondent in No. 88-1581.
Thomas R. Bartman, Atty., Dept. of Justice, Washington, D.C., also entered an appearance, for respondent in No. 88-1784.
G. William Frick, James Jackson, Washington, D.C., and Ralph J. Colleli, Jr. were on the brief, for intervenor American Petroleum Institute in No. 88-1578.
Neil J. King, Washington, D.C., and Raymond B. Ludwiszewski, Newington, Conn., entered appearances, for intervenor The Intern. Metals Reclamation Co., Inc. in Nos. 88-1581 and 88-1578.
Donald J. Patterson, Jr., Washington, D.C., and Roderick T. Dwyer entered appearances, for intervenor American Mining Congress in No. 88-1581.
Gary H. Baise, Karl S. Bourdeau and Steven F. Hirsch, Washington, D.C., entered appearances, for intervenor American Iron and Steel Institute in Nos. 88-1581, 88-1578 and 88-1784.
Before: WALD, Chief Judge and MIKVA, Circuit Judge, and REVERCOMB, * District Judge.
Opinion for the Court filed by Chief Judge WALD.
Petitioners 1 in this case challenge two regulatory provisions dealing with the treatment and disposal of hazardous waste established by the Environmental Protection Agency ("EPA" or "the agency") pursuant to the Resource Conservation and Recovery Act of 1976 ("RCRA" or "the Act"). The petitioners claim that the contested regulations are arbitrary and capricious, and that they were issued without adequate notice and comment as required by the Administrative Procedure Act ("APA"). We conclude that the challenged regulations are reasonable and that petitioners' notice and comment challenge is without merit. Accordingly, the petition for review is denied.
This dispute involves a rulemaking initiated by the EPA under the RCRA. Subtitle C of the Act, 42 U.S.C. Secs. 6921-34, establishes a comprehensive framework regulating the treatment and disposal of hazardous wastes. Pursuant to its statutory mandate, the EPA has adopted a two-part definition of the term "hazardous waste." First, the agency has published several lists of specific "listed" hazardous wastes. 40 C.F.R. Part 261, Subpart D. Second, the agency has issued rules providing that any solid waste which demonstrates any one of four characteristics--ignitability, corrosivity, reactivity, and extraction procedure toxicity--will be considered a "characteristic" hazardous waste. 40 C.F.R. Part 261, Subpart C. The Act provides that any facility which treats, stores, or disposes of a listed or characteristic hazardous waste must first obtain a permit. 42 U.S.C. Sec. 6925.
The RCRA was recently modified by the Hazardous Solid Waste Amendments of 1984 (the "1984 Amendments"), which established sweeping restrictions on the land disposal of hazardous wastes. The EPA was required to establish a schedule dividing the hazardous wastes into "thirds," see 42 U.S.C. Sec. 6924(g)(4); the agency promulgated the schedule in May of 1986. 2 See 51 Fed.Reg. 19,300 (May 28, 1986). The division of the schedule into thirds was designed as a means of phasing in the land disposal restrictions. By August 8, 1988, the EPA was required to promulgate treatment standards for each of the first-third scheduled wastes; these wastes may not be land disposed unless they have been treated to meet the applicable standards or the disposal unit is one from which there will be no migration of hazardous constituents for as long as the waste remains hazardous. See 42 U.S.C. Sec. 6924(g)(4)(A). Similar land disposal restrictions for second-third and third-third wastes are scheduled to take effect on June 8, 1989 and May 8, 1990; prior to these dates, the EPA is required to promulgate treatment standards for the scheduled wastes. 3 See 42 U.S.C. Secs. 6924(g)(4)(B), 6924(g)(4)(C).
The present dispute concerns the rulemaking in which the EPA established treatment standards for first-third wastes. The new regulations were submitted for public comment in two Notices of Proposed Rulemaking, which were published in the Federal Register on April 8, 1988 and May 17, 1988. See 53 Fed.Reg. 11,741; 53 Fed.Reg. 17,577. The final rule was published in the Federal Register on August 17, 1988, with an effective date of August 8, 1988. See 53 Fed.Reg. 31,137. In these public notices the EPA issued treatment standards for the various wastes; in lengthy preambles to the notices, the agency discussed the interpretive principles which would guide its application of the standards. Three such principles merit discussion here.
One of these principles concerns the treatment standards applicable to leachate produced from hazardous waste. Leachate is produced when liquids, such as rainwater, percolate through wastes stored in a landfill. The resulting fluid will contain suspended components drawn from the original waste. Proper leachate management involves the storage of wastes in lined containers so that leachate may be collected before it seeps into soil or groundwater. The leachate will periodically be pumped out of the container and subsequently treated.
An EPA regulation promulgated in 1980, known as the "derived-from rule," provided that "any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust, or leachate (but not including precipitation run-off) is a hazardous waste." 40 C.F.R. Sec. 261.3(c)(2)(i). 4 Thus, for some years prior to the 1988 rulemaking, it had been understood that leachate derived from a hazardous waste was itself a hazardous waste. In the 1988 preambles, the agency stated that leachate derived from multiple hazardous wastes would be deemed to contain each of the wastes from which it was generated, and that it must therefore be treated to meet the applicable treatment standards for each of the underlying wastes. 5 See 53 Fed.Reg....
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