ELR Citation: ELR 20365
No(s). s. 86-1433 et al (D.C. Cir. Nov 16, 1990)

The court upholds Environmental Protection Agency (EPA) regulations under §3004(a) of the Resource Conservation and Recovery Act (RCRA) prohibiting the continued receipt of nonhazardous wastes by unretrofitted surface impoundments that are not first emptied of accumulated hazardous waste. In 1981, EPA issued final regulations under §3004(a) for the closure of hazardous waste facilities that required both permitted and interim status facilities to treat, remove, or dispose of all hazardous wastes within 90 days after receiving the final volume of hazardous waste. Companion regulations required the facilities to complete closure within 180 days after receiving the final volume of any wastes. Congress, in 1984, amended RCRA to provide that new surface impoundments and landfills used for the management of hazardous wastes must meet minimum technological requirements, including double liners and leak detection systems. In 1986, EPA promulgated revised final closure regulations that required closure after final receipt of only hazardous wastes, to which petitioners objected. In 1989, after considering petitioners' claims, EPA promulgated further revised closure regulations to allow permitted and interim status facilities to continue operations after ceasing to receive hazardous wastes as long as the impoundments were either retrofitted to meet the minimum technological requirements imposed by the 1984 amendments, or remove all significant amounts of accumulated hazardous wastes.

The court first holds that although Congress' intent on the issue is not entirely clear, EPA's interpretation that Congress did not impose any restraint on the Agency's preexisting authority under §3004(a) to issue regulations governing the operation of hazardous waste facilities to protect "human health and the environment" is reasonable and consistent with the purposes of RCRA. Section 3005(j), added by the 1984 amendments, which called for interim status surface impoundments to cease receiving, storing, or treating hazardous waste after 1988, unless retrofitted to meet minimum technological requirements imposed on permitted facilities, does not reveal congressional intent to deprive EPA of authority to require unretrofitted surface impoundments to close once they cease receiving hazardous wastes. Moreover, the legislative history does not provide a contrary result. Because the explicit statutory policy of the 1984 amendments was to discourage the use of land facilities for the storage and disposal of hazardous wastes, the court defers to EPA's interpretation.

The court next holds that EPA's 1986 and 1989 revisions to the closure regulations were not arbitrary and capricious. The record shows that EPA adopted the 1989 closure regulations after considering the useful capacity of unretrofitted surface impoundments to continue to receive nonhazardous wastes for disposal. The preamble of the 1989 regulations noted that a number of sound policy reasons existed for allowing units to delay closure to continue to receive nonhazardous waste. EPA adequately explained that the accumulation of additional quantities of nonhazardous wastes on top of hazardous wastes significantly increases the risk of leaks, and was thus justified in requiring that unretrofitted impoundments be emptied of hazardous wastes to remain open. It is not the role of courts to second-guess the scientific judgments of EPA. Moreover, EPA acted rationally in imposing more stringent closure requirements on unretrofitted surface impoundments than on landfills or surface impoundments that meet the minimum technological requirements. Unretrofitted impoundments pose a special incremental risk of leaks and EPA has authority under RCRA to differentiate between degrees of risk in regulating hazardous waste facilities. Finally, EPA used the proper legal standard in promulgating the 1989 regulations, and those regulations did not constitute a reversal of policy without adequate support in the record.

Counsel for Petitioner
Carole Stern, Richard A. Flye
McKenna, Conner & Cuneo
1575 Eye St., NW, Ste. 800, Washington, DC 20005
(202) 789-7500

Counsel for Respondent
W. Christian Schumann, Richard B. Stewart, Ass't Attorney General; Steven E. Silverman, Acting Ass't General Counsel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Lee R. Tyner, Dov Weitman
U.S. Environmental Protection Agency
Office of General Counsel
401 M St. SW, Washington DC 20460
(202 382-2090

Before: WALD, Chief Judge, MIKVA and RUTH B. GINSBURG, Circuit Judges.