ELR Citation: ELR 20305
No(s). s. 80-1532 et al (D.C. Cir. Dec 6, 1991)

The court holds that the U.S. Environmental Protection Agency (EPA) failed to provide adequate notice and opportunity to comment in 1980 when it promulgated the "mixture" and "derived-from" rules and the leachate monitoring requirement under the Resource Conservation and Recovery Act (RCRA), and EPA's definition of "treatment" and its permit-shield regulation are consistent with congressional intent and the Agency's enforcement discretion under RCRA. The court first holds that the mixture and derived-from rules, which categorize substances as hazardous wastes until a contrary showing is made, were not a logical outgrowth of the proposed regulations. EPA acknowledges that neither of the two rules was to be found among the proposed regulations, and its contention that the new rules were foreseeable because comments during the rulemaking appeared to anticipate them does not justify a finding of implicit notice. The court concludes that interested parties may have anticipated the potential for avoiding regulation by simply mixing hazardous and nonhazardous wastes, but EPA was responsible for addressing that possibility in its proposed regulations. Even if the mixture and derived-from rules had been widely anticipated, comments from the public would not constitute adequate notice. The court further concludes that the regulatory strategy of the proposed regulations differed markedly from that of the final rules. The proposed rules imposed on generators the duty to test wastes for hazardous characteristics, whereas the final rules rely primarily on a system of listing wastes and waste-producing processes.

Next, the court holds that EPA's regulation of resource recovery from hazardous wastes is permissible under RCRA. EPA's proposed regulations, explanation, and background documents reflect that it considered resource recovery to be within its authority under RCRA Subtitle C to manage hazardous wastes from cradle to grave. The court concludes that the absence of the words "resource recovery" in Subtitle C does not preclude EPA's regulatory role in managing hazardous wastes when useable resources are salvaged from them. The court holds that EPA acted reasonably in incorporating resource recovery within the regulatory definition of "treatment." Further, the court concludes that EPA's decision to subject discarded hazardous material to Subtitle C regulation, even if it is sent to a resource recovery facility, is consistent with the court's earlier decision in American Petroleum Institute v. EPA, 20 ELR 21091. The court then holds that EPA's proposed rule did not adequately forewarn parties that leachate monitoring requirements might be imposed on land treatment facilities. While EPA sought comments on groundwater monitoring and all aspects of soil-core monitoring, the agency did not request comments on alternatives to soil coring, such as leachate monitoring. The court concludes that even if EPA could bootstrap notice from a comment, it failed to identify even one prepromulgation comment recommending or opposing leachate monitoring at land treatment facilities. Finally, the court holds that EPA's permit-shield regulation, which generally exempts a facility from enforcement proceedings for statutory violations if it is in compliance with its permit conditions, is a reasonable self-imposed constraint on EPA's enforcement discretion. Although the permit-shield provision will narrow the opportunities for citizen suits, it does not preclude them. Thus, the permit-shield challenge does not present a case or controversy requiring resolution.

Counsel for Petitioners
John R. Quarles
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

Karen D. Florini
Environmental Defense Fund
1616 P St. NW, Ste. 150, Washington DC 20036
(202) 387-3500

David F. Zoll
Chemical Manufacturers Association
2501 M St. NW, Washington DC 20037
(202) 887-1186

Counsel for Respondent
Mary E. Ward, Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BUCKLEY, WILLIAMS, and THOMAS,^* Circuit Judges.