ELR Citation: ELR 21091
No(s). s. 88-1606 et al (D.C. Cir. Jun 26, 1990)

The court holds that the Environmental Protection Agency (EPA) unlawfully exempted K061 waste, a zinc-bearing listed hazardous waste, from the Resource Conservation and Recovery Act's (RCRA's) restrictions on land disposal of hazardous wastes. In promulgating final regulations governing the disposal of all scheduled hazardous wastes, EPA divided such wastes into "thirds" in setting treatment standards. Notwithstanding industry requests, EPA refused to consider land treatment (in conjunction with certain forms of pretreatment) as a potential best demonstrated available technology (BDAT) for petroleum wastes. EPA also concluded that it lacked authority to establish any treatment standards for K061 slag residues resulting from the primary production of steel in electric furnaces, because the furnaces used for metals reclamation are components of the industrial process potentially involved in production, an activity normally beyond EPA's RCRA authority. The court first holds that EPA properly interpreted RCRA as precluding consideration of land treatment as BDAT. The record does not indicate that the pretreatment component of the BDAT that industry petitioners asked EPA to consider—land treatment in conjunction with some form of pretreatment—would by itself satisfy RCRA §3004(m)'s treatment standards, and EPA's refusal to consider the suggested BDAT was reasonable. The court next holds that petitioners have standing to challenge EPA's decision to no longer use comparative risk assessment, which compares the risks to human health and the environment from waste treatment by a particular BDAT with those from land disposal of the same waste. Since EPA rejected several techniques for the treatment of refinery wastes in establishing treatment levels that would not have been precluded if EPA engaged in comparative risk assessment, petitioners alleged an actual or threatened injury. However, the court holds that EPA's decision to abandon comparative risk analysis was not arbitrary or capricious.

The court next holds that EPA's failure to prescribe treatment standards for K061 slag derived from its flawed interpretation of statutory authority under RCRA. The court holds that petitioners' challenge is ripe, because the scope of EPA's statutory authority is purely a legal question, presumptively reviewable. EPA's suggestion that review of the first-third rule be deferred until rulemakings are completed on which reclamation materials are exempt from RCRA is meritless. The court holds that EPA failed to give a reasoned explanation for its finding that RCRA precluded it from treating K061 as a solid waste once it reaches a metals reclamation facility. The court notes that, ordinarily, when EPA determines that a particular substance is a hazardous waste, it continues to treat as hazardous waste any product derived from that substance. The court observes that Congress has not spoken precisely on EPA's authority to regulate K061 slag. However, the court finds that K061 is indisputably discarded before being subject to metals reclamation, and thus it is part of the waste disposal problem subject to EPA's regulatory authority.

Counsel for Petitioner
Ralph J. Colleli Jr., G. William Frick
American Petroleum Institute
1220 L St. NW, Washington DC 20005
(202) 682-8271

Karl S. Bourdeau, Barton C. Green
Beveridge & Diamond
1350 I St. NW, Washington DC 20005
(202) 789-6000

Counsel for Respondents
Daniel S. Goodman, Michael A. McCord, Lisa F. Ryan, Thomas R. Bartman, Roger J. Marzulla
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Steven E. Silverman, E. Donald Elliott
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7724, (202) 475-8040

Before WALD, Chief Justice, and EDWARDS and RUTH B. GINSBURG, Circuit Judges.