Environmental Defense Fund v. U.S.E.P.A., 86-1528

• Citation: 852 F.2d 1309
• Decision Date: 29 July 1988
• Docket Number: No. 86-1528,86-1528
• Parties: , 271 U.S.App.D.C. 342, 18 Envtl. L. Rep. 21,178 ENVIRONMENTAL DEFENSE FUND, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents, American Mining Congress, Idaho Mining Association, Kennecott, The Fertilizer Institute, Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1309

852 F.2d 1309

28 ERC 1102, 271 U.S.App.D.C. 342, 18

Envtl. L. Rep. 21,178

ENVIRONMENTAL DEFENSE FUND, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents,

American Mining Congress, Idaho Mining Association,

Kennecott, The Fertilizer Institute, Intervenors.

No. 86-1528.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 11, 1987.

Decided July 29, 1988.

Robert V. Percival, with whom, Alan S. Miller, Washington, D.C., Debra Hirshkowitz, (student counsel) and Jan Wagner (student counsel), were on the brief, for petitioner.

Scott A. Schachter, Atty., Dept. of Justice, with whom, Roger J. Marzulla, Acting Asst. Atty. Gen. and Margaret B. Silver, Atty., E.P.A., Washington, D.C., were on the brief, for respondent.

John N. Hanson, with whom, Donald J. Patterson, Jr., Edward M. Green, Washington, D.C., Roderick T. Dwyer for American Mining Congress; Richard A. Flye, Christian Volz, Carole Stern, Washington, D.C., for the Fertilizer Institute; Alfred V.J. Prather, Kurt E. Blase, Washington, D.C., for Kennecott and Robert M. Tyler, Jr., Boise, Idaho, for Idaho Mining Ass'n were on the joint brief for intervenors, American Mining Congress, et al. Kaye L. O'Riordan, Boise, Idaho, also entered an appearance for intervenor, Idaho Mining Ass'n.

Before MIKVA and SILBERMAN, Circuit Judges, and OBERDORFER, ^* District Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

The Environmental Defense Fund ("EDF") challenges the decision by the Administrator of the Environmental Protection Agency ("EPA" or "the agency") to regulate wastes from the extraction and beneficiation stages of mining under Subtitle D rather than under the stricter standards of Subtitle C of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Secs. 6921-6939b (1982 & Supp. III 1985). EDF asks the court to set aside EPA's exemption of mining wastes from Subtitle C regulation and to direct the agency to commence rulemaking to consider what Subtitle C standards should be applied to mining wastes determined to be hazardous. We disagree with EDF that the agency acted in contravention of the statute in deciding not to regulate these mining wastes under Subtitle C, and decline to disturb EPA's regulatory determination.

I. BACKGROUND

A. RCRA: Subtitles C and D

Congress enacted RCRA in 1976 to establish a comprehensive federal program to regulate the handling of solid wastes. Subtitle D of RCRA, 42 U.S.C. Sec. 6941-6949a, addresses solid wastes, including wastes "resulting from * * * mining * * * operations," 42 U.S.C. Sec. 6903(27), that do not qualify for regulation as "hazardous wastes" under Subtitle C. Under Subtitle D, states use federal financial and technical assistance to develop solid waste management plans in accordance with federal guidelines. EPA has authority under this Subtitle to promulgate criteria for classification of waste facilities as sanitary landfills and open dumps. Sec. 4004(a), 42 U.S.C. Sec. 6944(a). Facilities can be classified as sanitary landfills only if there is no possibility of danger to health or environment from deposits at those sites. The statute prohibits open dumping of potentially dangerous solid wastes, Sec. 4005(a), 42 U.S.C. Sec. 6945, and requires states to submit for EPA approval comprehensive solid waste disposal plans that include a prohibition of such unregulated dumping. Secs. 4006, 4007, 42 U.S.C. Secs. 6946, 6947.

Subtitle C of RCRA, 42 U.S.C. Secs. 6921-6939b, regulates hazardous wastes and requires EPA to promulgate regulations to govern the treatment, storage, and disposal of these wastes. 42 U.S.C. Sec. 6924. Under Sec. 3001(b)(1) of that Subtitle, 42 U.S.C. Sec. 6921(b)(1), Congress directed EPA to develop criteria to identify hazardous wastes and authorized the agency to list particular wastes as hazardous according to the Sec. 3001(a) criteria. Generally wastes are considered hazardous under Subtitle C if they are listed as hazardous by the Administrator, see 40 C.F.R. Secs. 261.11(b), 261.30-261.33 (1986), or they are found to have one of four technical characteristics of hazardousness, see 40 C.F.R. Sec. 261.11(a)(1). These are ignitability, corrosivity, reactivity and EP toxicity (defined as the leaching of toxic residues into surrounding liquid). 40 C.F.R. Secs. 261.20-261.24.

B. Regulation of Mining Wastes

Congress enacted Subtitle C to address the hazards of industrial and manufacturing processing wastes. Recognizing that "information on the potential danger posed by mining waste is not sufficient to form the basis for legislative action," H.R.Rep. No. 1491, 94th Cong., 2d Sess. 15 reprinted in 1976, U.S.Code Cong. & Admin.News 6238, 6253, Congress included a statutory provision directing EPA to conduct a detailed study of mining wastes to evaluate "the potential danger to human health and environmental vitality." Id; see Sec. 8002(f), 42 U.S.C. Sec. 6982(f). The study provision mandates investigation of the following factors: the sources and volume of mining waste and present disposal practices; alternative practices and costs of the alternatives; potential dangers to human health and the environment; possibilities for use of discarded material; and adequacy of state or other federal regulatory programs to meet the problem.

At the time Congress enacted this section, there was no provision in RCRA permitting the deferral of mining waste regulation until the study was complete. In subsequent years, EPA attempted to develop a regulatory approach to various types of mining wastes. On December 18, 1978, EPA proposed regulations governing hazardous waste under which mining wastes from the "extraction, beneficiation, and processing of ores and minerals" would be subject to distinct management standards as "special wastes," defined as low hazard wastes generated "in very large volumes." See 43 Fed.Reg. 58,946 (1978). On May 19, 1980, EPA revised its regulations to eliminate the separate category of "special wastes" subject to modified Subtitle C regulation. The agency explained that, due to tightening of its EP toxicity and corrosivity criteria for Subtitle C regulation, the agency anticipated that "special" large volume/low hazard wastes would no longer qualify for stringent regulation under Subtitle C. See 45 Fed.Reg. 33,174 (1980). However, certain smelting and refining mining waste streams satisfying the revised criteria for hazard were "listed" under Subtitle C.

Just before these interim final regulations went into effect, Congress changed the approach to regulation of mining waste. On October 21, 1980, Congress passed the Solid Waste Disposal Act of 1980 (Pub.L. 96-482, 94 Stat. 2334), adding to RCRA new sections known as the "Bevill Amendment." Under new Sec. 8002(p), 42 U.S.C. Sec. 6982(p), Congress expanded the scope of EPA's study of mining industry wastes. In addition to factors listed in Sec. 8002(f), this section directs the EPA to "conduct a detailed and comprehensive study on the adverse effects on human health and the environment, if any, of the disposal and utilization" of these wastes and to investigate any "documented cases in which danger to human health or the environment has been proved." Sec. 8002(p)(4). In addition to analyzing alternative disposal methods, their cost, and their impact on the cost of mining products, see Sec. 8002(f), (p), EPA was ordered to investigate the impact of alternative disposal methods on the utilization of the nation's natural resources. Sec. 8002(p)(7), (8). The Bevill Amendment also included Sec. 3001(b)(3)(A)(ii), which suspended regulation of mining processing wastes under Subtitle C until at least six months after the agency had completed and submitted this study to Congress. Congress also added Sec. 3001(b)(3)(C), 42 U.S.C. Sec. 6921(b)(3)(C), which orders EPA to make a regulatory determination with regard to wastes excluded from Subtitle C regulation. Within six months after submission of the study, and following public opportunity for comment, this section requires EPA "either * * * to promulgate regulations under [Subtitle C] for each waste * * * or determine that such regulations are unwarranted."

The agency missed the October 16, 1983 statutory deadline for completion of the Sec. 8002(p) study, and an environmental group brought suit to enforce EPA's responsibilities. In 1985, a district court ordered EPA to complete the Sec. 8002(p) study of wastes suspended from Subtitle C regulation under the Bevill Amendment by December 31, 1985. See Concerned Citizens of Adamstown v. EPA, Civ. No. 84-3041 (D.D.C. Aug. 21, 1985). Because EPA anticipated that certain smelting and refining wastes from advanced stages of ore processing would not fall within the Bevill exclusion as interpreted in regulations the agency intended to propose, the agency did not plan to submit a study concerning those wastes. (In a companion case, another panel of this court addresses, among other things, EPA's failure to either study or regulate those wastes under Subtitle C in a timely fashion. See Environmental Defense Fund and Hazardous Waste Treatment Council v. EPA and Lee M. Thomas, Administrator, 852 F.2d 1316 (D.C.Cir. 1988)). However, EPA promised to study large quantity primary processing wastes that the agency interpreted as falling within the Bevill exclusion.

C. Hazardous and Solid Waste Amendments of 1984

While EPA was conducting its Sec. 8002(p) investigation, Congress enacted another provision addressing mining waste regulation as part of the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), 42 U.S.C. Secs. 6924(a)-(x). New Sec. 3004(x) was designed to "provide[ ] that if certain mining wastes become subject to regulation as hazardous wastes the Administrator of the EPA will have the authority to modify the requirements of the Act." 130 Cong.Rec. S9180 (daily ed. July 25, 1984) (remarks of Sen. Simpson). This amendment...