ELR Citation: ELR 20158
No(s). s. 93-1187 et al (D.C. Cir. Nov 15, 1994)

The court remands to the U.S. Environmental Protection Agency (EPA) for modification or additional justification portions of regulations that establish limits on 10 heavy metal toxic pollutants in sewage sludge that is destined for land application. EPA used concentration data and risk-based data to set limits for the 10 pollutants for purposes of determining regulatory requirements for land application of sewage sludge. Sewage sludge that contains the pollutants below certain limits—"clean sludge" caps—may avoid further regulatory control of land application. Petitioners challenge several aspects of the clean sludge caps.

The court first rejects EPA's safe harbor defense—that because it is not requiring compliance with the clean sludge caps, but merely offering them as an option, or safe harbor, to meeting further regulatory requirements, EPA should have greater leeway in designing the caps. Because the caps provide "significant relief," that safe harbor is subject to the same rational basis review as the rest of the regulatory scheme. The court next rejects EPA's reliance on pollutant concentration to set the clean sludge caps. Section 405(d)(2) of the Federal Water Pollution Control Act mandates that the limits be risk-based, but EPA failed to show that the concentration-based caps are risk-related. The court rejects EPA's argument that the concentration-based caps reflect a legitimate antibacksliding approach, because without a finding of risk, EPA has no basis for imposing an antibacksliding mandate. The court also holds that EPA did not show that its sewage sludge application rate and duration, or site-life, assumptions underlying the risk-based clean sludge caps were rationally related to actual application rate and duration with regard to heat-dried sludge, a form of sludge that allegedly is applied at lower rates and for shorter durations than other sludge. The court rejects use of these risk-based caps for heat-dried sludge and remands them to EPA for reconsideration of the clean sludge risk-based caps with regard to heat-dried sludge in order either to justify its general assumptions on rate and duration or to provide more tailored caps that fit the data on heat-dried sludge. The court also remands to EPA for further justification the Agency's application of the risk-based cap on the selenium content of sludge. EPA based the cap on assumptions of high-occupancy exposure to public contact sites actually having low potential for occupancy, but EPA failed to show a rational relationship between its conservative exposure assumptions and the actual usage regulated by those assumptions. The court upholds EPA's decision not to allow site-specific variances, because the Agency was under no general duty to establish such a procedure. The court holds that §405(d)(2)(D) authorizes EPA to protect against phytotoxicity in setting risk-based figures for chromium, but that EPA lacks adequate support for its final limit. The court also holds that EPA failed to provide evidentiary support for its cumulative pollutant limit on chromium in sewage sludge, and the court remands that limit. Finally, the court upholds EPA's decision not to classify dedicated beneficial use sites as a type of land disposal. The Agency's decision does not appear irrational and the petitioner has not shown that the consequences of the decision are dire.

Counsel for Petitioner
John L. Wittenborn
Collier, Shannon, Rill & Scott
3050 K St. NW, Ste. 400, Washington DC 20007
(202) 342-8514

Counsel for Respondent
Daniel S. Goodman, Mark A. Nitczynski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WALD, WILLIAMS, and ROGERS, Circuit Judges.