ELR Citation: ELR 20024
No(s). s. 90-1230 et al (D.C. Cir. Sep 25, 1992)

The court holds that the U.S. Environmental Protection Agency (EPA or the Agency) is authorized under §3004(g)(5) and (m) of the Resource Conservation and Recovery Act (RCRA) to require that listed hazardous wastes be treated below the ignitability, corrosivity, reactivity, and toxicity levels that caused EPA to list them as hazardous. Key RCRA provisions support the view that the statute's definition of hazardous waste does not create a revolving regulatory door. This reading of the statute is also consistent with the court's prior interpretations of RCRA. The court next holds that EPA's deactivation treatment standard, which authorizes the dilution of wastes to eliminate their ignitability, corrosiveness, and reactivity, is permissible for the treatment of corrosive wastes that do not, after dilution, contain hazardous constituents that would themselves present a continuing danger to human health or the environment. Applying the U.S. Supreme Court's holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507, on deference to an agency's statutory interpretation, the court holds that Congress did not clearly bar dilution as an acceptable treatment method. The court vacates the deactivation treatment rule as applied to the treatment of ignitable wastes, in view of EPA's position that treatment pursuant to §3004(m) requires the removal of a waste's hazardous characteristic and the reduction of other hazardous constituents, and the Agency's concessions that constituents are present in some ignitable wastes subject to the deactivation standard. The court grants a petition by an environmental organization for review of EPA's deactivation treatment standard as applied to reactive wastes, because EPA's final regulations offer no assurance that dilution of explosive, water reactive, or other reactive wastes will not create a risk of violent reaction.

The court next holds that new EPA dilution rules that authorize centralized Federal Water Pollution Control Act (FWPCA) treatment facilities to aggregate certain characteristic waste systems are valid where the waste is decharacterized prior to placement in an FWPCA facility's surface impoundment and subsequently treated in full conformity with RCRA §3001(m)(1) standards. The rules reasonably accommodate RCRA and the FWPCA systems, and satisfy RCRA's requirement that any accommodation "be done in a manner consistent with the goals and policies" of both RCRA and the FWPCA. The court also holds that dilution is permissible prior to injection in deep wells when dilution itself fully meets the §3004(m)(1) standards. The court holds that EPA's treatment standard for lead wastewaters, which has a characteristic level of 5.0 milligrams per liter of lead, violates RCRA, and remands the standard to EPA for further consideration.

The court holds that EPA's statements in its final treatment rule that impermissible dilution occurs whenever waste streams are combined and the combined stream is not treated in a manner appropriate for each individual waste, did not violate the Administrative Procedure Act's notice-and comment-requirements. EPA gave adequate notice by explicitly stating in its proposed rule that it considered impermissible dilution that met the treatment level without undergoing the required treatment. Also, EPA directly foreshadowed its final interpretation by noting in the proposed rule that the dilution prohibition was limited to cases where dilution was part of the treatment. The court holds that EPA was not impermissibly vague when it stated that as "a general rule, if the wastes are all legitimately amenable to the same type of treatment, and this method of treatment is utilized for the aggregated wastes, the aggregation step does not constitute impermissible dilution."

The court further holds that EPA's rule authorizing the aggregation in the FWPCA facilities of characteristic wastes for which no treatment method has been specified does not arbitrarily exclude listed wastes for which EPA has promulgated a concentration-based treatment standard. The distinction is based on the primary difference between listed wastes and characteristic wastes. The court upholds EPA's rules requiring periodic corroborative waste testing by disposers and enforcement of waste treatment standards by grab sampling rather than representative sampling. Finally, the court remands EPA's chromium waste treatment standards and exemption from §3004(m)(1) requirements for hazardous waste burned in utility boilers, mining furnaces, and cement kilns that qualify as Bevill units.

[Related decisions are published at 17 ELR 20521, 18 ELR 20307 and 20315, and 19 ELR 20641 and 20868.]

Counsel for Petitioners
David R. Case, Eli D. Eilbott
Hazardous Waste Treatment Council
915 15th St. NW, 5th Fl., Washington DC 20005
(202) 783-0870

Karen L. Florini
Environmental Defense Fund
1875 Connecticut Ave. NW, Ste. 1016, Washington DC 20009
(202) 387-3500

Counsel for Respondent
Angus Macbeth
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271

Before EDWARDS, BUCKLEY, AND HENDERSON, Circuit Judges.