ELR Citation: ELR 21274
No(s). s. 88-1657 et al (D.C. Cir. Jun 29, 1990)

The court generally upholds the Environmental Protection Agency's (EPA's) regulations under the Resource Conservation and Recovery Act (RCRA) governing the deep well injection of hazardous waste against challenges from industry and environmental petitioners. Responding first to industry claims that the regulations are too stringent, the court holds that EPA may ban the disposal of hazardous waste by deep injection and require site-specific permits without first determining that the method is not protective of human health and the environment. Nothing in RCRA §3004(g) requires EPA to determine that a land disposal method is not safe before prohibiting it. The courtholds that EPA made the determination required by RCRA §3004(f), which applies to California list wastes and solvents and dioxins, that deep well injection might not protect human health and the environment without a permit process. The court holds that EPA's decision to require individual applications for site-specific permits under §3004(f) was not arbitrary and capricious. The court holds that EPA was authorized to apply the no-migration standard to disposal under §3004(f), even though that section does not explicitly require application of the standard. RCRA §3004(d), (e), and (g) contain the no-migration standard, which prohibits EPA from determining that a land disposal method is protective of human health and the environment unless an interested person demonstrates that there will be no migration of hazardous constituents from the injection zone for as long as the wastes remain hazardous. Had EPA decided not to apply the no-migration standard to §3004(f), it would have legalized injection of the wastes specified in subsections (d) and (e) without meeting the standard for the wastes in subsection (g), even though the subsection (d) and (e) wastes are just as hazardous as the subsection (g) wastes. The court holds that RCRA's no-migration standard is not identical to the Safe Drinking Water Act's (SDWA's) safety standard and that EPA's interpretation that RCRA imposes a stricter standard on deep well injection of hazardous waste is reasonable. The court holds that EPA properly required injectors to demonstrate under §3004(f) and (g) that there would be no migration of hazardous constituents outside the injection zone via molecular diffusion. The court holds that EPA did not abuse its discretion in requiring injectors to show that there will be no migration of hazardous constituents from the injection zone as long as the wastes remain hazardous, or for 10,000 years, whichever is shorter. While some wastes may cease to be hazardous in less than 10,000 years, the regulations allow the injector to obtain relief if it can make such a showing.

Addressing claims by environmental groups that the regulations are too lenient, the court upholds EPA's interpretation of the no-migration standard that hazardous constituents may migrate as long as the wastes immediately surrounding them at the border are no longer hazardous. The environmental groups allege that EPA has transformed the standard of no migration of hazardous constituents into a standard of no migration of hazardous wastes. While this is a close issue, the court defers to EPA's interpretation of the ambiguous statutory language, structure, and legislative history. The court next upholds EPA's definition of "injection zone." Congress' intent that EPA incorporate the existing regulatory definition from EPA's SDWA regulations did not preclude EPA from modifying the definition to extend across both the porous formations into which the fluid is injected and the confining materials surrounding the formations. The court holds that EPA violated RCRA §3004(b)(1)(B)'s requirement that it issue performance and permitting standards for the disposal of wastes in salt dome and bed formations, underground mines, or caves. EPA stated that the new regulations could constitute performance and permitting standards for these geological formations, but that the determination would be made during a facility's permit application. The court holds that the procedural issue of whether EPA must have regulations in place before it issues permits is ripe for review. The court holds that §3004(b)(1)(B) requires prior promulgation of these standards. The court orders EPA on remand to either drop its assertion of potential applicability or to state which class of salt domes is covered and justify its decision. The court also holds that EPA violated RCRA §3004(b)(1)(C)'s requirement that a permit be issued under §3005(c) before disposal in geologic depositories. EPA's regulations stated that a permit under the SDWA's underground injection well program would satisfy §3004(b)(1)(C), but failed to explain how the SDWA permit process meets the procedural protections required for the RCRA permits. On remand, EPA must more fully explain the procedural requirements of the various permit processes and interpret the statutory requirements for §3005(c) permits. While EPA may integrate the SDWA and RCRA procedures to avoid duplication, it must demonstrate that the process meets the statutory requirements.

One judge dissents from the court's holding that EPA properly interpreted the no-migration standard to allow hazardous constituents to migrate as long as the wastes immediately surrounding them at the border are no longer hazardous. In enacting the no-migration standard banning migration of hazardous constituents, Congress did not intend to ban only migration of hazardous wastes.

Counsel for Petitioners
David R. Case
Hazardous Waste Treatment Council
1440 New York Ave. NW, Washington DC 20005
(202) 783-0870

Donald Strait
Natural Resources Defense Council, Inc.
122 E. 42nd St., 45th Fl., New York NY 10168
(212) 727-2700

Robert F. Van Voorhees
Bryan, Cave, McPheeters & McRoberts
1015 15th St. NW, Washington DC 20005
(202) 289-6100

Counsel for Respondents
Peter W. Colby
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Steven Silverman
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

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