ELR Citation: ELR 20562
No(s). 91-1221 (D.C. Cir. Feb 22, 1994)

The court upholds in part the U.S. Environmental Protection Agency's (EPA's) rule regulating the combustion of fuels containing hazardous wastes in boilers and industrial furnaces (BIFs) under §3004(q) of the Resource Conservation and Recovery Act (RCRA). Section 3004(q) directs EPA to regulate facilities burning hazardous waste as fuel. The BIF rule is designed to establish air emissions requirements for facilities burning hazardous waste as fuel. The rule also integrates the mandates of §3004(q) and the Bevill Amendment, which is a RCRA provision that excludes certain types of waste from RCRA Subtitle C's hazardous waste management regime.

Applying the standard of review set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507 (U.S. 1984), the court first holds that the language of the Bevill Amendment is ambiguous as to hazardous waste fuels burned in Bevill devices. Therefore the court examines whether the regulation is a permissible interpretation of RCRA. The court notes that the BIF rule integrates the mandates of the Bevill Amendment and §3004(q) by providing both quantitative and qualitative requirements that Bevill wastes must satisfy in order to retain their exemption from Subtitle C. The qualitative requirements provide that Bevill wastes that meet the quantitative criteria may remain exempt if they have not been "significantly affected" by the hazardous waste fuel that was burned to produce them, or do not present a hazard to human health and the environment. In response to industry petitioners' argument that Congress intended that Bevill waste be exempt from Subtitle C without regard to the materials burned by the device that produced them, the court holds that EPA's interpretation of the Bevill Amendment is reasonable and a permissible interpretation. The rule is designed to distinguish low hazard/high volume wastes from such wastes that are in combination with products of combustion of hazardous waste.

Next the court holds that the environmentalist petitioners have standing to challenge the BIF rule's interpretation of the Bevill Amendment. The groups allege that the BIF rule is an unlawful interpretation of the Bevill Amendment that exposes their members to greater risks than they would face if all Bevill wastes were regulated under Subtitle C, and those wastes would be subject to more stringent regulation if EPA were required to regulate them as Subtitle C hazardous wastes. However, the court rejects the environmentalists' argument that Congress intended automatically to remove the Bevill exemption for all Bevill wastes generated from coprocessing hazardous wastes. Congress was aware that cement kilns and other Bevill devices burned hazardous waste, but did not indicate how EPA should integrate the potentially conflicting provisions at issue. EPA's rule is a permissible interpretation of §3004(q) and the Bevill Amendment because it ensures that the necessary criteria remain the standard for exemption of Bevill wastes from Subtitle C, and it recognizes that those Bevill wastes that are not low hazard come within §3004(q)'s broad mandate that EPA regulate burning of hazardous waste. The court also rejects environmentalists' challenge to EPA's determination that Bevill wastes that pass the BIF rule's "significantly affected" test are not subject to RCRA's land disposal restrictions (LDR), which prohibit landfilling of Subtitle C hazardous waste unless the wastes are treated according to specific standards or disposed of in a land disposal facility that meets RCRA's "no migration" standard. The court upholds EPA's decision to exempt some Bevill wastes from Subtitle C, and holds that those residues that are excluded are not subject to the LDR because those provisions by their plain language do not apply to materials that are not hazardous waste. EPA's decision to exempt nonhazardous Bevill wastes from the LDR is a permissible, though not required, interpretation of the Bevill Amendment and of Subtitle C. Moreover, that the LDR do not apply to non-Subtitle C wastes is the result of EPA's 1986 regulation, not a consequence of the BIF rule that EPA was required to address in the BIF rulemaking.

The court holds that the plain language of §3004(a) and (q) allows EPA to regulate facilities that burn nonwaste fuels if those fuels are being burned with hazardous waste, and upholds the rule insofar as it regulates air emissions from BIFs burning mixtures of hazardous waste and nonwaste fuels. Section 3004(q) applies to facilities, not just fuels, such that EPA may regulate BIF owners or operators who elect to burn fuels containing hazardous waste. Section 3004(a) allows EPA to regulate owners and operators of facilities that "treat" hazardous waste, and burning hazardous waste is considered treatment. Also, although it would have been useful had EPA addressed more precisely three alternative proposals industry made during the rulemaking proceedings, EPA's general discussion of its decision to regulate nonwaste adequately set forth its reasons for rejecting the proposals.

The court vacates EPA's Tier III products of incomplete combustion (PICs) standard that is part of EPA's regime to control emissions from burning hazardous waste fuels as necessary to protect human health and the environment pursuant to §3004(q)(1). In response to this mandate, EPA proposed standards for emissions of toxic organic compounds in the BIF rulemaking to control PICs. One way to measure PICs is by combustion efficiency, and EPA chose to monitor carbon monoxide (CO) and total hydrocarbon (THC) levels as indicators of combustion efficiency. EPA required that one of three standards be met. The court vacates one of these standards, the Tier III standard, because EPA gave insufficient notice and opportunity for comment. Although EPA proposed individual elements of the Tier III standard separately, the component parts were never collected together in such a fashion as to enable the parties to anticipate and adequately comment on the ultimate Tier III standard and its form. Moreover, the Tier III standard was not a logical outgrowth of any precursor proposal. The court also holds that EPA's promulgation of the Tier III standard lacked a reasoned basis and therefore was arbitrary and capricious. The Agency relied on pure speculation when it concluded that cement kilns could reliably quantify both CO and THC baselines when burning nonhazardous fuel. Finally, the court upholds the Tier I and Tier II standards of the BIF rule's PIC provisions because their promulgation was not arbitrary and capricious. EPA issued the regulations as protective of human health and the environment, and the Agency satisfactorily recognized the effects of the Tier I and Tier II standards on a segment of the affected industry and attempted to accommodate it in the Tier III standard. Simply because the Tier I and Tier II standards are inapplicable to that segment of industry is insufficient to persuade the court that the promulgation of the Tier I and Tier II standards was arbitrary and capricious.

Counsel for Petitioner
Richard G. Stoll
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave. NW, Ste. 825, Washington DC 20036
(202) 457-5119

Counsel for Respondent
Steven E. Silverman
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before: WALD, EDWARDS, and BUCKLEY, Circuit Judges.