Dithiocarbamate Task Force v. E.P.A., s. 95-1249

• Decision Date: 01 November 1996
• Docket Number: 95-1251,Nos. 95-1249,95-1253 and 95-1255,s. 95-1249
• Citation: 98 F.3d 1394
• Parties: , 321 U.S.App.D.C. 231, 27 Envtl. L. Rep. 20,224 DITHIOCARBAMATE TASK FORCE, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, Uniroyal Chemical Company, Inc., and Zeneca, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1394

98 F.3d 1394

43 ERC 1577, 321 U.S.App.D.C. 231, 27

Envtl. L. Rep. 20,224

DITHIOCARBAMATE TASK FORCE, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents Uniroyal Chemical Company, Inc., and Zeneca, Inc., Intervenors.

Nos. 95-1249, 95-1251, 95-1253 and 95-1255.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 4, 1996.

Decided Nov. 1, 1996.

On Petitions for Review of an Order of the Environmental Protection Agency.

Bethami Auerbach, Washington, DC, argued the cause for petitioner Dithiocarbamate Task Force, et al. Lynn L. Bergeson, Aaron Goldberg and Ann Claassen were with her on the briefs.

Seth A. Goldberg, Washington, DC, argued the cause for petitioner Troy Chemical Corporation. Anita G. Fox was with him on the briefs.

Michael W. Steinberg, Washington, DC, argued the cause for petitioner Zeneca, Inc. Hunter L. Prillaman, J. Daniel Berry and Mark A. Greenwood were with him on the briefs.

Alan J. Birnbaum and Cecilia E. Kim, Attorneys, United States Department of Justice, Washington, DC, argued the cause for respondents. Lois J. Schiffer, Assistant Attorney General, and Alan H. Carpien, Attorney, United States Environmental Protection Agency, were with them on the brief. Christopher S. Vaden, Attorney, United States Department of Justice, entered an appearance.

Before: EDWARDS, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

This consolidated case concerns four classes of carbamate compounds--carbamates proper, carbamoyl oximes, thiocarbamates and dithiocarbamates (collectively "carbamates")--whose similar names reflect similarities in their chemical origins and structures. All are derivatives of carbamic acid. Carbamates and derivative products are used as pesticides, herbicides and fungicides; they are also used in various ways by the rubber, wood and textile industries. In the rulemaking giving rise to this lawsuit the Environmental Protection Agency listed many of these carbamate-based products, as well as waste streams generated in carbamate-based production processes, as hazardous wastes under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k ("RCRA") (1994). Petitioners, the Dithiocarbamate Task Force (treated collectively with intervenor Uniroyal Chemical Co. as "DTF" or the "Task Force"), Zeneca Inc., and Troy Chemical Corp., are (or represent) manufacturers who make various carbamate-based products or use carbamates in their production processes. They challenge a portion of these listings as arbitrary and capricious.

Because we find that in promulgating some of the challenged rules EPA failed to meet the minimum standard required of it by the Administrative Procedure Act, see 5 U.S.C. § 706(2)(A) (1994), we vacate in part and affirm in part.

* * *

Statutory and Regulatory Authority: RCRA, enacted in 1976, directs the EPA to promulgate criteria for identifying and listing hazardous wastes, "taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." 42 U.S.C. § 6921(a). In 1980 EPA issued rules for identifying hazardous wastes, along with its first list of wastes subject to RCRA. ¹ See Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45 Fed.Reg. 33,084-33,137 (May 19, 1980) (codified as amended at 40 CFR Part 261) (hereinafter, "Identification of Hazardous Waste"). Those rules remain in force today, with minor adjustments.

The rules lay out three different routes to listing a substance as a hazardous waste, of which the third is of primary relevance here. Under it a waste can be listed as hazardous if it satisfies two conditions:

It contains any of the toxic constituents listed in appendix VIII [to 40 CFR Part 261] and after considering the following factors [listed below], the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed.

Identification and Listing of Hazardous Waste, 40 CFR § 261.11(a)(3) (1995) (bracketed material added). The first step in the process, adding chemicals to appendix VIII, is to occur "only if [the chemicals] have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms." Id. In the second step, the Administrator is to consider the following factors:

(i) The nature of the toxicity presented by the constituent.

(ii) The concentration of the constituent in the waste.

(iii) The potential of the constituent or any toxic degradation product of the constituent to migrate from the waste into the environment under the types of improper management considered in paragraph (a)(3)(vii) of this section.

(iv) The persistence of the constituent or any toxic degradation product of the constituent.

(v) The potential for the constituent or any toxic degradation product of the constituent to degrade into non-harmful constituents and the rate of degradation.

(vi) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems.

(vii) The plausible types of improper management to which the waste could be subjected.

(viii) The quantities of the waste generated at individual generation sites or on a regional or national basis.

(ix) The nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituent.

(x) Action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent.

(xi) Such other factors as may be appropriate.

Id.

Once the EPA decides to list a waste as hazardous, the substance is assigned a particular code and included in the appropriate lists in Subpart D of Part 261. Wastes generated by manufacturing processes are listed as K wastes. Chemical products or manufacturing chemical intermediates that are hazardous if they are discarded or intended to be discarded are listed as P or U wastes, the P designation being reserved for "acute hazardous wastes" of this type. (EPA made 18 P listings in this rulemaking but none is disputed here.)

Listing has significant consequences. Any hazardous waste is subject to precisely prescribed rules on disposal, see, generally, 40 CFR Part 264, record-keeping (covering both makers and users), see, generally, id. Part 262, and transport, see, generally, id. Part 263. In addition, hazardous wastes listed under RCRA or exhibiting one or more of the characteristics of a listed RCRA hazardous waste are considered hazardous substances under the regulatory scheme set up by the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675 (1995). See id. § 9601(14)(C). CERCLA requires that every release of a hazardous substance above a specified level, known as the reportable quantity ("RQ"), be reported to the National Response Center and to state and local authorities. The EPA set the RQ for all the hazardous wastes we consider here at one pound, the statutory fallback level, id. § 9602(b), pending further study.

The Present Rulemaking: Invoking its authority under 40 CFR § 261.11(a)(3), EPA proposed to list six K wastes and 70 P and U wastes, running the gamut of the carbamate industry. In addition, the agency proposed to list four generic U wastes that would cover any substance that could be classified as one of the four kinds of carbamates. The Agency also proposed to add to Appendix VIII of Part 261 each of the chemical constituents that were the basis of the proposed listings, which in the case of the P and U listings were the products or manufacturing chemical intermediates themselves. ² Proposed Rule: Carbamate Production Identification and Listing of Hazardous Waste, 59 Fed.Reg. 9808 (March 1, 1994).

The final rule differed from the proposal only slightly. In response to comments, the EPA said it would not list the four generic U wastes. It also decided not to make 12 of the proposed U listings because of insufficient toxicity data. Based on a re-analysis of the toxicity data it did have, EPA moved four chemicals from the P listings for acutely hazardous substances to the U listings. The K listings, aside from some tinkering with special exemptions not at issue here, remained essentially unchanged. The result was that 40 carbamate industry products received U listings, 18 received P listings and all 58 were listed on Appendix VIII. In addition, manufacturers involved in each of the four classes of carbamates had at least one production waste stream listed as a K waste. Final Rule: Carbamate Production Identification and Listing of Hazardous Waste, 60 Fed.Reg. 7824, 7825-7827 (Feb. 9, 1995).

* * *

The U Listings: Of the 40 products listed as U wastes, DTF challenges the listing of 17 dithiocarbamates, ³ Zeneca the listing of six of its thiocarbamate products, ⁴ and Troy the listing of its product, IPBC, U375, a carbamate proper.

Petitioners' first line of attack is on the EPA's adding items to Appendix VIII and listing them pursuant to 40 CFR § 261.11(a)(3), all in one rulemaking rather than two. They do not, however, point to any language in § 261.11(a)(3) suggesting any requirement of sequential listing. Nor do they identify any way in which the EPA's consolidated process might jeopardize their rights or increase the risk of error. Petitioners also claim that it is unreasonable for EPA to consider aquatic toxicity data, or the harm caused to aquatic environments, in making Appendix VIII listings or the actual hazardous waste listings we consider below. But they point to nothing in...