Consolidated Land Disposal Regulation Litigation, In re, s. 82-2210

• Citation: 938 F.2d 1386
• Decision Date: 16 July 1991
• Docket Number: 82-2211,82-2274 and 82-2275,82-2259,Nos. 82-2210,82-2216,s. 82-2210
• Parties: , 291 U.S.App.D.C. 127, 21 Envtl. L. Rep. 21,235 In re CONSOLIDATED LAND DISPOSAL REGULATION LITIGATION, National Solid Wastes Management Association, et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1386

938 F.2d 1386

33 ERC 1489, 291 U.S.App.D.C. 127, 21

Envtl. L. Rep. 21,235

In re CONSOLIDATED LAND DISPOSAL REGULATION LITIGATION,

National Solid Wastes Management Association, et al., Intervenors.

Nos. 82-2210, 82-2211, 82-2216, 82-2259, 82-2274 and 82-2275.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 12, 1991.

Decided July 16, 1991.

Petitions for Review of Regulations of the United States Environmental Protection Agency.

William R. Weissman, with whom Norman L. Rave, Jr., for Edison Electric Institute, et al., Karl S. Bourdeau and Barton C. Green, for American Iron and Steel Institute were on the joint brief, for petitioners in Nos. 82-2210 and 82-2211 and intervenors in Nos. 82-2216, 82-2259, 82-2274 and 82-2275. Sue M. Briggum also entered an appearance, for petitioners.

Anthony F. King, with whom Christopher H. Marraro, G. William Frick and Ralph J. Colleli, Jr. were on the brief, for petitioner, American Petroleum Institute in Nos. 82-2216 and 82-2274. James K. Jackson and Bruce A. Eisen also entered appearances, for petitioner.

David J. Kaplan, Atty., Dt. of Justice and Caroline H. Wehling, Attorney, E.P.A., with whom Barry M. Hartman, Deputy Asst. Atty. Gen. was on the brief, for respondents in Nos. 82-2210, 82-2211, 82-2216, 82-2259, 82-2274 and 82-2275. Lee R. Tyner and Barry M. Hartman, Attys., Dept. of Justice, also entered appearances, for respondents.

Richard A. Flye and Robert L. Rhodes, Jr. entered appearances, for petitioner, Mobil Oil Chemical Co. in No. 82-2275.

William C. Brashares and Charles A. Samuels entered appearances, for intervenor, National Solid Wastes Management Ass'n in Nos. 82-2210, 82-2211, 82-2216, 82-2259 and 82-2274.

William L. Rosbe and Scott E. Slaughter entered appearances for intervenor, Ford Motor Co. in Nos. 82-2210, 82-2211, 82-2216, 82-2259, 82-2274 and 82-2275.

Karen L. Florini entered an appearance, for intervenor, Environmental Defense Fund in Nos. 82-2210, 82-2211, 82-2216, 82-2259, 82-2274 and 82-2275.

John T. Smith, II entered an appearance, for intervenor, Chemical Mfrs. Ass'n in No. 82-2274.

Benjamin W. Boley and Michael S. Giannotto entered appearances, for intervenors, Atlantic Cement Co., Inc., et al., in No. 82-2274.

Richard S. Waserstrom entered an appearance, for intervenors, American Paper Institute, et al., in No. 82-2274.

Louis E. Tosi and Julius J. Hallis entered appearances for intervenor, General Motors Corp. in No. 82-2275.

Before RUTH BADER GINSBURG, SILBERMAN, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

In late 1982, a score of petitioners and intervenors sought review of the interim final hazardous waste land disposal regulations that the Environmental Protection Agency had issued in July of that year. Briefing was deferred while the parties pursued first legislative changes and then settlement talks. Now, after many parties have withdrawn, many issues have been settled or overtaken by events, and several of the original counsel have been succeeded by others--indeed by a new generation at the bar--three petitioners set before us two of the original 84 issues.

Petitioners American Iron and Steel Institute and Edison Electric Institute challenge the regulations insofar as they require a closed land disposal facility to obtain and abide by the terms of an EPA permit. 40 C.F.R. Sec. 270.1(c); see 47 Fed.Reg. 32,336 (July 26, 1982) (scope of permit requirement, then codified in 40 C.F.R. Part 122). These petitioners contend that the regulations are arbitrary and capricious and exceed the agency's statutory authority, and that the agency improperly issued a portion of the post-closure permit regulation without prior notice and an opportunity for the public to comment.

Petitioner American Petroleum Institute challenges the regulations insofar as they establish groundwater monitoring and cleanup standards applicable to any disposal site located above an aquifer, without making specific provision for the exemption of sites above aquifers that are both contaminated to the point of being useless and isolated from other waters. API contends that because the further contamination of such an aquifer poses no threat to human health or the environment, the regulation is arbitrary and capricious and in excess of the EPA's authority. For the reasons set out below, we deny both petitions for review.

I. POST-CLOSURE PERMITS

The Resource Conservation and Recovery Act gave the EPA very broad authority to regulate the disposal of hazardous waste. Sections 3004 and 3005 respectively direct the agency to establish "performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal [TSD] of hazardous waste," 42 U.S.C. Sec. 6924(a), and to issue regulations

requiring each person owning or operating an existing [TSD] facility ... to have a permit issued pursuant to this section. [After the effective date of these regulations] the treatment, storage, or disposal of any such hazardous waste ... is prohibited except in accordance with such a permit.

42 U.S.C. Sec. 6925(a). Pursuant to Sec. 3005, the EPA requires that all hazardous waste disposal facilities "that received wastes after July 26, 1982, or that certified closure (according to Sec. 265.115) after January 26, 1983" obtain a post-closure permit. 42 C.F.R. Sec. 270.1(c). The petitioners contend that this regulation is inconsistent with the "common sense meaning of [Sec. 3005] ... that a permit is required and authorized only for facilities that currently are or will be treating, storing, or disposing of (i.e., 'managing') hazardous waste."

We approach this issue within the framework established in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Because neither the petitioners nor the EPA claims that the Congress specifically addressed the question of requiring a post-closure permit for a disposal facility, we proceed under Chevron step two. Accordingly, we defer to the agency's interpretation of the statute so long as it is reasonable.

The EPA defines a "disposal" facility, for purposes of both Sec. 3004 and Sec. 3005, as any facility that received hazardous waste after the effective date of the permit requirement (November 19, 1980), regardless of whether the facility is currently open or closed. The petitioners concede that "a disposal facility that receives hazardous waste ... remains a 'disposal facility' subject to regulation [under Sec. 3004] after it closes." They argue, however, that Sec. 3005 is narrower in scope than Sec. 3004; as they read Sec. 3005, a permit is required only for on-going activities--the treatment, storage, or disposal of waste at such facilities--not for the facility itself post-closure.

The EPA maintains that it is reasonable to interpret broadly the term "disposal" in Sec. 3005 in light of Sec. 1004 of RCRA, which defines "disposal" very capaciously:

the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or be discharged into any waters, including ground waters.

42 U.S.C. Sec. 6903(3). A TSD facility "at which hazardous wastes have been disposed by placement in or on the land" remains subject to both permitting (per Sec. 3005) and regulation (per Sec. 3004), the agency contends, because "such hazardous wastes or constituents may continue 'leaking' or 'may enter the environment or be emitted ... or discharged ...' " into the environment.

The petitioners, on the other hand, make the linguistic point that "[d]isposal ... is not a continuing activity but occurs anew each time waste is placed into or on land." That may be one way in which the word is used in ordinary language, but is not necessarily how it is used in the statute; the equation of "disposal" with "leaking," which is a continuous phenomenon rather than a discrete event, is enough to blunt the sting of the petitioners' point. Theirs is at most an alternative reading of the statute, not an argument as to why the EPA's reading of the statute is unreasonable.

As to reasonableness, we note that the EPA also interpreted "disposal" to encompass the continuing presence of waste when it read Sec. 3004(a) to authorize post-closure performance standards, see 45 Fed.Reg. 33,198 (May 19, 1980). The petitioners concede that authority to the agency, yet insist that the word "disposal" must be read differently when it appears in Sec. 3005. We are constrained to disagree: the two sections were intended to work together (as evidenced by the cross...