ELR Citation: ELR 21006
No(s). 91-1586 (D.C. Cir. Jun 18, 1993)

The court denies a petition by electric utility associations and individual power companies to review the U.S. Environmental Protection Agency's (EPA's) interpretation of §3004(j) of the Resource Conservation and Recovery Act (RCRA) as prohibiting the storage of mixtures of radioactive material and hazardous waste indefinitely pending the development of adequate treatment and/or disposal capacity. The court first holds that the petition was timely filed, because it was filed within 90 days of EPA's 1991 statement of enforcement policy with respect to the storage of mixed wastes. Although EPA initially promulgated its §3004(j) regulations in 1986, by soliciting comments on the regulations and advancing a possible alternative approach in its proposed "third-third" rule, EPA provided the type of opportunity for renewed comment and objection that suffices to restart the review period. The court holds that the 90-day period did not begin to run from June 1, 1990, the date of the final "third-third" rule, because EPA stated in the final rule that it would further evaluate the legal, policy, and factual issues relating to the storage of mixed wastes, and that it expected to issue its policy on the mixed-waste storage issue during the next 90 days. This clearly indicated that EPA had not yet reached a final position with respect to the storage of mixed wastes.

The court next rejects EPA's argument that its enforcement policy statement is immune from review as an enforcement decision generally committed to an agency's absolute discretion. Petitioners are not challenging the manner in which EPA has chosen to exercise its enforcement discretion. Instead, they are challenging EPA's interpretation of §3004(j) and its implementing regulations. The court holds that the case is ripe for review, because Congress affirmatively expressed a preference for prompt review of RCRA regulations by establishing a 90-day window for filing challenges. Also, the petition for review presents a purely legal question, EPA's position on the application of §3004(j) to the storage of mixed wastes has crystallized, the court's deliberations are unlikely to be aided by application of EPA's interpretation to a particular set of facts, and the present case cannot be characterized as one in which resolution of the dispute is likely to prove unnecessary if the court elects to defer review.

Applying the Supreme Court's test in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 14 ELR 20507, for statutory interpretation, the court holds that Congress has spoken to the precise question at issue, and that §3004(j) cannot be read to sanction the indefinite storage of potentially unlimited amounts of mixed wastes while treatment methods or disposal capacity is being developed. The court rules that the statute authorizes storage only when it is intended to build up an amount of waste that can be readily transported, treated, or disposed of. To the extent that the statutory language leaves any doubt, it evaporates when one considers the design of the statute as a whole. RCRA includes provisions that are specifically intended to deal with the problem of inadequate treatment or disposal capacity. The fact that Congress provided a statutory mechanism in §3004(h)(2) and (h)(3) to deal with the contingency of inadequate treatment or disposal capacity weighs heavily against a reading of §3004(j) that would permit storage to become an alternative avenue for dealing with such shortages. Also, EPA's interpretation of §3004(j) is consistent with RCRA's status as a highly prescriptive, technology-forcing statute. The court notes that even though it may have proven impossible for generators to develop the required treatment and disposal options within the statutory period, courts have not shrunk from adopting onerous interpretations of statutory provisions where required by the clear intent of Congress. Finally, the court rejects the petitioners' argument that EPA's consideration of an alternative approach to interpreting §3004(j) indicates that the statute is ambiguous. The alternative advanced by EPA was not broad enough to contemplate the indefinite storage of potentially unlimited amounts of wastes pending the development of adequate treatment and disposal capacity.

Counsel for Petitioners
Douglas H. Green
Newman & Holtzinger
1615 L St. NW, Washington DC 20036
(202) 955-6600

Counsel for Respondent
Daniel W. Pinkston
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before EDWARDS, BUCKLEY, and D.H. GINSBURG, Circuit Judges.