Edison Elec. Institute v. U.S. E.P.A.
| Decision Date | 24 August 1993 |
| Docket Number | 89-1321,Nos. 89-1320,90-1322,90-1323,90-1320,s. 89-1320 |
| Parties | , 303 U.S.App.D.C. 169, 62 USLW 2151, 23 Envtl. L. Rep. 21,173 EDISON ELECTRIC INSTITUTE, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. , and 90-1324. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Donald J. Patterson, Jr., Richard S. Wasserstrom, and Duane A. Siler argued the cause for petitioners American Mining Congress, American Paper Institute, Inc., Institute of Scrap Recycling Industries, Inc., National Forest Products Ass'n, Edison Elec. Institute, et al., and Cincinnati Gas & Elec. Co., et al. With them on the briefs were Edward M. Green, Roderick T. Dwyer, Cynthia H. Evans, J. Thomas Wolf, John N. Hanson, Diane L. Gildersleeve, Richard S. Moskowitz, William R. Weissman, Douglas H. Green, and Norman L. Rave, Jr.
David R. Case argued the cause for petitioners Natural Resources Defense Council, and Hazardous Waste Treatment Council. With him on the briefs were Jacqueline M. Warren and Eli D. Eilbott.
Christopher S. Vaden, Atty., Dept. of Justice, argued for respondent, with whom on the brief was Elizabeth M. Ahern, Atty., Dept. of Justice, and Caroline H. Wehling, Atty., E.P.A., argued the cause for respondent.
William R. Weissman, Norman L. Rave, Jr., G. William Frick, Ralph J. Colleli, Jr. and John P. Wagner were on the briefs for intervenors Edison Elec. Institute, et al., and American Petroleum Institute.
William R. Weissman, Douglas H. Green, and Thomas H. Truitt entered appearances for intervenor Edison Elec. Institute, et al.
Robert B. Sanner, II entered an appearance for intervenor Ass'n of Metropolitan Sewage Agencies.
Cynthia H. Evans and Richard S. Wasserstrom entered appearances for intervenors American Paper Institute, and the National Forest Products Ass'n.
Michael W. Steinberg, Hunter L. Prillaman, David F. Zoll and Ronald A. Shipley
entered appearances for intervenor Chemical Mfrs. Ass'n.
Donald J. Patterson, Jr., John N. Hanson, Edward M. Green and Roderick T. Dwyer entered appearances for intervenor American Min. Congress.
Karl S. Bordeau, Paul E. Shorb, III, and Barton C. Green entered appearances for intervenor American Iron & Steel Institute.
G. William Frick, Ralph J. Colleli, Jr., and John P. Wagner entered appearances for American Petroleum Institute.
Before: MIKVA, Chief Judge, SILBERMAN * and D.H. GINSBURG, Circuit Judges.
Opinion PER CURIAM.
This consolidated appeal presents numerous petitions for review of EPA's Toxicity Characteristic ("TC") rule, promulgated pursuant to the Resource Conservation and Recovery Act of 1976. The TC seeks to identify waste which, if mismanaged, may release hazardous amounts of toxic materials into the environment. In order to accomplish this goal, the TC includes a toxicity test designed to simulate the actual leaching of wastes that might occur in a municipal solid waste landfill. The petitioners challenge several aspects of this test.
We hold that EPA has failed to explain adequately the application of the TC toxicity test to certain mineral processing and electric utility wastes, and therefore remand to EPA for further proceedings consistent with this opinion. The petitions for review are denied in all other respects.
AMC American Mining Congress
API American Paper Institute
DAF Dilution and Attenuation Factor
EEI Edison Electric Institute
EP Extraction Procedure
EPA Environmental Protection Agency
HSWA Hazardous and Solid Waste Amendments of 1984
ISRI Institute of Scrap Recycling Industries
MSW Municipal Solid Waste
NFPA National Forest Products Association
NIPDWS National Interim Primary Drinking Water Standards
RCRA Resource Conservation and Recovery Act of 1976
TC Toxicity Characteristic
TCLP Toxicity Characteristic Leaching Procedure
tpy tons of waste per year
UST Underground Storage Tank
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Congress enacted the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Secs. 6921-6982, to establish a comprehensive program to regulate the handling of solid wastes. Environmental Defense Fund v. EPA, 852 F.2d 1309, 1310 (D.C.Cir.1988) ("EDF I "). Subtitle C of RCRA, 42 U.S.C. Secs. 6921-6939b, establishes "a 'cradle-to-grave' regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste." United Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C.Cir.1987). Solid wastes that are not identified as hazardous are subject to the less stringent requirements of RCRA Subtitle D, 42 U.S.C. Secs. 6941-6949a. EDF I, 852 F.2d at 1310.
RCRA itself does not include a list of hazardous wastes nor a specific method for determining whether a waste is hazardous. Instead, the statute defines "hazardous waste" generally as
a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may--
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.
42 U.S.C. Sec. 6903(5). Having set out this general definition, Congress delegated to the Environmental Protection Agency ("EPA" or "the Agency") the duty to "promulgate regulations identifying the characteristics of hazardous waste, and listing particular hazardous wastes ... which shall be subject to the provisions of [Subtitle C]." 42 U.S.C. Sec. 6921(b)(1). Thus, Congress directed the Agency to identify hazardous wastes in two ways: (1) identify certain characteristics which would render a solid waste hazardous, and (2) list specific solid wastes that are, so to speak, per se hazardous.
This appeal concerns only the former category of solid wastes, those deemed hazardous by virtue of possessing certain general characteristics. More specifically, the petitioners present a multifarious challenge to EPA's final rule revising the Toxicity Characteristic ("TC")--one of the four characteristics (the other three are ignitability, corrosivity, and reactivity) set out in EPA regulations for the purpose of identifying hazardous solid wastes. See 40 C.F.R. Sec. 261.24; 55 Fed.Reg. 11,798 (1990). The TC seeks to "identify waste which, if improperly disposed of, may release toxic materials in sufficient amounts to pose a substantial hazard to human health or the environment." 43 Fed.Reg. 58,952 (1978).
In 1980, EPA established a "protocol" for determining the TC of solid wastes, which it dubbed the "Extraction Procedure" ("EP"). See 45 Fed.Reg. 33,110-12 (1980). The EP toxicity test is based on a particular mismanagement scenario--"co-disposal of toxic wastes in an actively decomposing municipal landfill which overlies a groundwater aquifer," id. at 33,110--and is intended to simulate the actual leaching of wastes that might occur in a municipal solid waste ("MSW") landfill. The test requires a waste generator to mix a representative sample of its waste with an acidic leaching medium for 24 hours, and then to test the resulting liquid waste to see if it contains unsafe levels of any of 14 toxic contaminants identified in the National Interim Primary Drinking Water Standards ("NIPDWS") promulgated pursuant to 42 U.S.C. Sec. 300g-1. Id.
In order to duplicate the attenuation in concentration expected to occur between the point of leachate generation and the point of human or environmental exposure, the EP applies a dilution and attenuation factor ("DAF") of 100 to the concentration of toxic contaminants observed in the test extract. 45 Fed.Reg. 33,111. Thus, a waste would be considered hazardous, and subject to RCRA Subtitle C regulation, if the results of the EP toxicity test revealed the presence of any listed contaminant at a level of at least 100 times the applicable NIPDWS.
The initial challenge to the 1980 TC and other RCRA regulations was filed shortly after their promulgation, but this Court suspended briefing in light of ongoing settlement negotiations. Shell Oil v. EPA, No. 80-1532 . After negotiations failed to produce a settlement, the challenge to the TC rule was reactivated, id. (D.C.Cir. June 22, 1988), but subsequently severed from the other issues in the case and held in abeyance pending completion of a rulemaking commenced in 1986 to revise the TC. Id. (D.C.Cir. March 7, 1989); id. . The challenges to the 1980 TC rule were eventually consolidated in this challenge. Edison Electric Institute v. EPA, No. 89-1320 (D.C.Cir. August 8, 1990).
The 1986 rulemaking to revise the TC was necessitated by two intervening pieces of legislation. First, in 1980, Congress passed the Bevill Amendment, codified at 42 U.S.C. Sec. 6921(b)(3)(A), as part of the Solid Waste Disposal Act Amendments of 1980, Pub.L. No. 96-482,94 Stat. 2334. The Bevill Amendment exempted from Subtitle C regulation certain waste produced by fossil fuel combustion and mineral processing and directed EPA to study the environmental effects of such wastes and to determine whether special regulations were necessary to govern their disposal. See Solite Corp. v. EPA, 952 F.2d 473, 478 (D.C.Cir.1991). In litigation to compel EPA to meet the statutory deadlines for implementation, this Court found that Congress intended to exempt "only those wastes from processing ores or minerals that [are] 'high volume, low hazard' wastes." Environmental Defense Fund v. EPA, 852 F.2d 1316, 1328-29 (D.C.Cir.1988) ("EDF II"), cert. denied, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989). In a subsequent rulemaking, EPA decided to exempt only...
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