Pub. Emps. for Envtl. Responsibility v. Envtl. Prot. Agency
| Docket Number | 21-1187 |
| Decision Date | 25 July 2023 |
| Citation | 77 F.4th 899 |
| Parties | PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of a Final Agency Action of the Environmental Protection Agency.
Paula Dinerstein argued the cause and filed the briefs for petitioner.
Sarah Izfar, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief was Todd Kim, Assistant Attorney General.
Wayne J. D'Angelo was on the brief for amicus curiae Corrosivity Coalition in support of respondent.
Before: Henderson and Pan, Circuit Judges, and Edwards, Senior Circuit Judge.
The Resource Conservation and Recovery Act of 1976 ("RCRA") governs the treatment, storage, and disposal of hazardous waste. In implementing the RCRA, the Environmental Protection Agency ("EPA") promulgated a rule under which waste is deemed "hazardous" if it is "corrosive." A scientist and a public interest group unsuccessfully petitioned the EPA to expand the definition of "corrosive" wastes so that more wastes would be subject to the RCRA's most stringent requirements. The question presented in this case is whether the EPA properly declined to revise its corrosivity regulation. Because several of the petitioner's arguments are time-barred and the EPA otherwise acted within its broad discretion, we deny the petition for review.
The cornerstone of the RCRA is Subtitle C, which imposes strict "cradle to grave" requirements "for the treatment, storage, and disposal" of wastes classified as "hazardous." Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 211 (D.C. Cir. 2007) (cleaned up); see generally 42 U.S.C. §§ 6921-6939g. The statute, however, provides "only a broad definition of 'hazardous waste'." Nat. Res. Def. Council, Inc. v. EPA, 25 F.3d 1063, 1065 (D.C. Cir. 1994). Specifically, § 6903(5) of the RCRA defines "hazardous waste" as:
42 U.S.C. § 6903(5). In sum, "hazardous wastes" are characterized by their potential to damage human health or the environment, either intrinsically or when mismanaged.
The EPA bears responsibility for identifying which wastes are "hazardous" and therefore subject to Subtitle C regulation. The RCRA directs the agency to "develop and promulgate [regulations] identifying the characteristics of hazardous waste, and for listing hazardous waste, . . . 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." See 42 U.S.C. § 6921(a)-(b)(1). The EPA finalized regulations that implement the statute in 1980. See Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45 Fed. Reg. 33,084 (May 19, 1980). Under the EPA's regulations, the agency can "list" individual wastes as hazardous, see 40 C.F.R. §§ 261.11, 261.30-.33, or it can specify certain "characteristics" that render a substance hazardous, see 40 C.F.R. §§ 261.10, 261.20-.24. The 1980 rules "identified four characteristics of hazardous wastes: ignitability, corrosivity, reactivity[,] and . . . toxicity." Am. Petrol. Inst. v. EPA, 906 F.2d 729, 733 (D.C. Cir. 1990) (per curiam); see also 40 C.F.R. §§ 261.21-.24. "Any solid waste exhibiting one or more of these characteristics is automatically deemed a 'hazardous waste' subject to regulation under Subtitle C of the RCRA even if it is not a 'listed' waste." Am. Petrol. Inst., 906 F.2d at 733.
This case concerns the characteristic of corrosivity. See 40 C.F.R. § 261.22. The EPA has construed "corrosive" to mean "the property that makes a substance capable of dissolving material with which it comes in contact." See Background Doc. to 1980 Corrosivity Characteristic Regulation (May 2, 1980) ("1980 Background Doc.") at 1. Corrosive materials are dangerous because they can "mobilize toxic metals, corrode waste storage containers, corrode skin and eyes, and cause damage to aquatic life." See Hazardous Waste Management System; Tentative Denial of Petition to Revise the RCRA Corrosivity Hazardous Characteristic, 81 Fed. Reg. 21,295, 21,300 (Apr. 11, 2016) ("Proposed Denial"). As relevant here, the 1980 regulations define as "corrosive" any waste that: (1) "has a pH less than or equal to 2 or greater than or equal to 12.5"; and (2) "is aqueous." 40 C.F.R. § 261.22(a)(1).2 pH is a scientific measurement of the acidity or basicity of a substance. A pH of 7 is neutral, neither acidic nor basic. A pH below 7 indicates that a substance is acidic, while a pH above 7 indicates that a substance is basic (sometimes called alkaline). The pH scale is logarithmic, so a substance with pH 9 is ten times more basic than a substance with pH 8. See 81 Fed. Reg. at 21,298. "Aqueous" is not defined in the regulation. For present purposes, "aqueous" effectively means liquid or semi-liquid. Cf. 1980 Background Doc. at 20 (); see also Letter from David Bussard, Dir. of Characterization & Assessment Div., EPA, to David S. Parsons, Wis. Dep't of Nat. Res. (Jan. 7, 1993), https://perma.cc/TAC8-QUFG (EPA guidance defining "aqueous" as "amenable to pH measurement").
The EPA apparently relied on erroneous information when it set the upper limit of the corrosivity characteristic regulation at pH 12.5. The agency's background document to its 1978 notice of proposed rulemaking stated: "It has been suggested that pH extremes . . . above 11.5 are not tolerated by the body, and contact will often result in tissue damage." Background Doc. to 1978 Proposed Corrosivity Characteristic Regulation (Dec. 15, 1978) ("1978 Background Doc.") at 8. It appears that the EPA mistakenly believed that its only source for the cited pH 11.5 level, the International Labour Office's 1972 Encyclopedia of Occupational Health and Safety ("ILO encyclopedia"), relied on "studies . . . conducted on corneal [i.e., eye] tissue which is more sensitive to injury than skin." Id.3 In fact, the ILO encyclopedia did not make any reference to studies performed on corneal tissue, nor did it suggest that skin tissue can tolerate higher pH substances than eye tissue. The EPA nevertheless reasoned that, because eye tissue is more sensitive to injury than skin, an upper pH limit of 12.0 would provide "sufficient protection . . . to those exposed to caustic wastes." Id.
In the final 1980 rulemaking, the agency further raised the upper threshold to pH 12.5, after receiving comments that "the proposed pH limits were unduly stringent . . . [and] would include many otherwise non-hazardous lime-stabilized wastes and sludges, thereby discouraging use of this valuable treatment technique." 45 Fed. Reg. at 33,109. The EPA agreed that the proposed limit of pH 12.0 was too low because lime-treated wastewater sludges, "which generally have a pH between 12.0 and 12.5 . . . can be put to agricultural and other beneficial uses." See 1980 Background Doc. at 11. "Accordingly, the Agency . . . adjusted the upper limit to pH 12.5 to exclude such wastes from the system." Id. The agency's assessment of the safety of lime-treated sludges, however, also relied on the erroneous belief that the relevant pH studies were performed on eye tissue.4 Nevertheless, the upper pH threshold of 12.5 was not challenged at the time of the 1980 rulemaking, and it remains the standard today. See 40 C.F.R. § 261.22(a)(1).
Before the EPA limited corrosivity to "aqueous" substances in the final 1980 rulemaking, it solicited comments on whether "solid [i.e., non-aqueous] waste which forms aqueous solutions of high or low pH" should also be deemed corrosive. See Hazardous Waste Guidelines and Regulations, 43 Fed. Reg. 58,946, 58,952 (Dec. 18, 1978). "A few comments . . . advocated including solids in the corrosivity characteristic but none described situations where the improper disposal of such wastes would be likely to cause damage." 45 Fed. Reg. at 33,109. Given that "the great majority of wastes are presumed to be in liquid or semi-liquid form," the agency decided that it would not "address corrosive solids at this time," but would revisit the issue "if the need for more control becomes apparent." Id. The "aqueous" requirement was not challenged at the time of the 1980 rulemaking, and it remains part of the corrosivity characteristic regulation today. See 40 C.F.R. § 261.22(a)(1).
In 2011, Dr. Cate Jenkins, a since-retired EPA scientist, and Public Employees for Environmental Responsibility ("PEER"), an environmental organization, petitioned the EPA to amend the corrosivity characteristic regulation. See Pet. for Rulemaking. Their petition for rulemaking requested that the agency: (1) "revise the pH level associated with alkaline corrosivity . . . from a value of 12.5 to 11.5"; and (2) "delete the specification that only wastes that are 'aqueous' are subject to regulation." Id. at 5.
The petition argued that the upper pH threshold should be lowered to pH 11.5 because the 1980 rulemaking setting the threshold at pH 12.5 was based on inaccurate information and is out of step with other measures of corrosivity adopted by international organizations. The petitioners claimed that "in the original 1980 regulation,...
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