Edison Elec. Institute v. U.S. E.P.A., 91-1586
| Decision Date | 18 June 1993 |
| Docket Number | No. 91-1586,91-1586 |
| Citation | 996 F.2d 326 |
| Parties | , 302 U.S.App.D.C. 60, 62 USLW 2006, 23 Envtl. L. Rep. 21,006 EDISON ELECTRIC INSTITUTE, et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Environmental Protection Agency.
Douglas H. Green argued the cause for petitioners. With him on the brief were Mary F. Edgar, James P. Rathvon, and Norman L. Rave, Jr.
Daniel W. Pinkston, Atty., U.S. Dept. of Justice, argued the cause for respondent. With him on the brief were Vicki A. O'Meara, Acting Asst. Atty. Gen. and Michael A. McCord, Atty., U.S. Dept. of Justice, George B. Wyeth, Gen. Counsel, Raymond Ludwiszewski, Acting Gen. Counsel, Steven Pressman, Acting Asst. Gen. Counsel and Lisa K. Friedman, Associate Gen. Counsel, U.S. E.P.A.
Before EDWARDS, BUCKLEY, and D.H. GINSBURG, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
Three national electric utility associations and seventy-three individual power companies petition for review of the Environmental Protection Agency's interpretation of section 3004(j) of the Resource Conservation and Recovery Act, a provision that governs the storage of hazardous wastes. The EPA's interpretation renders it unlawful to store wastes for indefinite periods pending the development of adequate treatment techniques or disposal capacity. Petitioners contend that this interpretation is both inconsistent with the statute and unreasonable as applied to generators of wastes containing both hazardous and radioactive components, for which there are currently few lawful treatment or disposal options. Because we find that the EPA's interpretation is not only permissible, but is in fact mandated by the terms of the statute, we deny the petition.
The Resource Conservation and Recovery Act of 1976 ("RCRA") establishes a comprehensive "cradle-to-grave" scheme for regulating hazardous wastes. As amended by the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), the centerpiece of RCRA is an ambitious set of land disposal restrictions ("LDRs"). The LDRs prohibit land disposal of particular wastes as of specified dates unless such disposal is carried out in accordance with regulations issued by the EPA. See generally Chemical Waste Management, Inc. v. EPA, 976 F.2d 2, 7-9 (D.C.Cir.1992). For most wastes, land disposal may continue after the applicable deadline only if one of two conditions is met. First, land disposal of a waste is allowable if the EPA concludes, with "a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the waste[ ] remain[s] hazardous." 42 U.S.C. § 6924(d)(1). Second, a waste may be land disposed if that waste is treated in accordance with standards established by the EPA. Id. § 6924(m)(2). Thus, RCRA directs the EPA to
promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.
Id. § 6924(m)(1).
The provision of RCRA at issue here, section 3004(j), limits the storage of hazardous wastes. It provides:
In the case of any hazardous waste which is prohibited from one or more methods of land disposal under this section (or under regulations promulgated by the Administrator under any provision of this section) the storage of such hazardous waste is prohibited unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal.
Id. § 6924(j). Congress enacted this section because it "believed that permitting storage of large quantities of waste as a means of forestalling required treatment would involve health threats equally serious to those posed by land disposal, and therefore opted in large part for a 'treat as you go' regulatory regime." Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 357 (D.C.Cir.1989) ("HWTC III ").
At issue in the present case is the application of section 3004(j) and the EPA's implementing regulations to "mixed wastes." Mixed wastes are wastes that contain both a hazardous waste component regulated under RCRA and a radioactive waste component regulated under the Atomic Energy Act ("AEA"). See State Authorization To Regulate the Hazardous Components of Radioactive Mixed Wastes Under the Resource Conservation and Recovery Act, 51 Fed.Reg. 24,504 (1986) (); New Mexico v. Watkins, 969 F.2d 1122, 1132 (D.C.Cir.1992) (). These wastes are generated by nuclear power plants, as well as by universities, research institutions, hospitals, and industrial facilities. At the present time, adequate treatment methods have not been developed, and there is a severe shortage of disposal capacity for mixed wastes. As a result, generators have turned to storing these wastes as their only available option short of ceasing their operations or engaging in illegal disposal practices.
The EPA issued regulations to implement section 3004(j) in 1986. See Hazardous Waste Management System; Land Disposal Restrictions, 51 Fed.Reg. 40,572, 40,579, 40,642-43 (1986). Reiterating the statutory language, the regulations provided that generators were permitted to store hazardous wastes subject to the LDRs in "tanks or containers on-site" if such storage was "solely for the purpose of the accumulation of such quantities of hazardous waste as necessary to facilitate proper recovery, treatment, or disposal...." 40 C.F.R. § 268.50(a)(1) (1992). The regulations also established a burden-shifting scheme for determining when storage would be viewed as "solely for the purpose of the accumulation of such quantities of hazardous waste as necessary to facilitate proper recovery, treatment, or disposal." Specifically, the regulations provided:
(b) An owner/operator of a treatment, storage or disposal facility may store such wastes for up to one year unless the Agency can demonstrate that such storage was not solely for the purpose of accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment, or disposal.
(c) A[n] owner/operator of a treatment, storage or disposal facility may store such wastes beyond one year; however, the owner/operator bears the burden of proving that such storage was solely for the purpose of accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment, or disposal.
Id. § 268.50(b), (c); see also HWTC III, 886 F.2d at 366-68 ().
As part of its November 22, 1989, proposed rule establishing disposal and treatment standards for certain wastes, known as "Third Third" wastes because they fell into the last of three groups of wastes to be regulated under the LDR program, the EPA sought comments on its existing approach and possible alternatives for implementing section 3004(j). See Land Disposal Restrictions for Third Scheduled Wastes,54 Fed.Reg. 45,372, 48,496 (1989). At the outset, the EPA noted that "[t]he intent of RCRA section 3004(j) and 40 C.F.R. § 268.50 is to prohibit use of long-term storage to circumvent treatment requirements imposed by the LDRs." Id. The EPA then observed that, although the existing regulations did not establish a "firm time limit" for storage of hazardous wastes, they had produced "concerns that some legitimate storage technically may be prohibited...." Id. Thus, the EPA announced that it was
... requesting comment on alternative approaches for prohibiting storage. Under one alternative, where prohibited wastes are stored in tanks or containers pending the utilization of proper treatment, recovery or disposal capacity, the storage would not be prohibited. Two examples of allowable storage under this alternative approach are provided below:
(1) Where a generator is storing wastes in tanks for six weeks because of a backup at an incinerator which the generator has a contract to use; and
(2) Where a treatment facility treats a prohibited waste to a level that does not meet the treatment standard and then stores the waste before treating it again to meet the standard.
EPA is soliciting views on these issues today because a literal reading of the statute would likely condemn such storage as unlawful. This is because the statutory language and 40 CFR § 268.50 draw a connection between the amount of waste being stored and the purpose of facilitating proper management. Virtually no storage except that undertaken to promote under-utilized proper management capacity would satisfy this literal reading of the statute.
....
Accordingly, EPA is soliciting comment on the alternative interpretation (i.e. that the storage prohibition only applies if storage is surrogate disposal, for example due to failure to utilize existing treatment capacity, or if storage is otherwise undertaken for purposes of evading a land disposal prohibition). Commentators should also address other potential situations where they believe that an overly literal reading of section 3004(j) may have consequences they believe Congress did not intend.
In response to this solicitation, the EPA received a number of comments supporting alternative approaches to implementing section 3004(j). Nevertheless, in the preamble to the final Third Third rule issued on June 1, 1990, the EPA...
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