ELR Citation: ELR 20827
No(s). 92-1003 (D.C. Cir. May 7, 1993)

The court upholds the U.S. Environmental Protection Agency's (EPA's) final rule setting minimum federal criteria for municipal solid waste landfills promulgated under §4010(c) of the Resource Conservation and Recovery Act (RCRA) and §405(d) of the Federal Water Pollution Control Act (FWPCA), but vacates an exemption for small landfills from groundwater monitoring requirements. The court also upholds EPA's announcement that it will allow publicly owned treatment works (POTWs) to grant removal credits to industrial sources that would otherwise perform duplicative treatment. Environmental groups challenged EPA's decisions in rulemakings conducted to satisfy its obligations under RCRA §4010(c) and the portion of FWPCA §405(d) concerning codisposed sludge, not to set numeric limits for toxins in codisposed sludge due to the infeasibility of the task, to approve the regulation's design and operation standards for municipal landfills as sufficiently protective of public health and the environment, and to exempt certain small landfills from the groundwater monitoring requirements the new rule imposes.

The court first upholds EPA's decision not to set numeric limits for safe concentrations of toxic substances in sludge codisposed of in municipal solid waste landfills. The FWPCA allows the Agency to dispense with numeric limits when, in the Administrator's judgment, it is not feasible to prescribe or enforce them. Here, EPA has decided that the method for arriving at the numeric limits is not scientifically defensible. The court also upholds EPA's announcement that it will allow POTWs to grant removal credits to industrial pretreaters. Under FWPCA §307(b)(1), the existence of valid sludge disposal regulations allows POTWs to grant such credits, which allow industrial sources to forego duplicative pretreatment. Because EPA complied with FWPCA §405, it follows that EPA properly allowed removal credits, despite the absence of numeric limitations. Moreover, because Congress did not require numeric limits for all sludge uses under §405, or condition the grant of removal credits under §307 on the existence of such numeric limits, EPA did not exceed its authority by failing to write such limitations into a statutory scheme containing none.

Next, the court upholds EPA's refusal to require municipal landfill operators to allow public access to documents evidencing compliance as part of its municipal solid waste disposal facility criteria. There is no indication in the 1984 amendments to RCRA that EPA must issue public participation guidelines in addition to those the Agency promulgated in 1979.

The court vacates and remands EPA's exemption of small landfills from its general groundwater monitoring requirements, holding that RCRA requires groundwater monitoring at all municipal landfills, regardless of size or location. The court concludes that the exemption, insofar as it reflects a desire to accommodate a facility's practicable capability, conflicts with the express and clear mandate of RCRA §4010(c). Although §4010(c) permits EPA generally to take into account the practicable capability of disposal facilities in determining which revised criteria are necessary to protect human health and the environment, this discretion does not extend to the determination whether to require groundwater monitoring. The plain language of the statute indicates that the only factor relevant to determining whether a particular facility should be required to maintain groundwater monitoring is whether such monitoring is necessary to detect contamination, not whether it is practicable.

Finally, although the court had "no doubt" that EPA violated a RCRA §4010(c) mandate by failing to issue criteria for facilities other than municipal landfills, the court holds that an action to enforce EPA's timely compliance with §4010(c) must be brought in district court. Because the promulgated rules do not address nonmunicipal facilities, and therefore do not fully satisfy RCRA §4010(c), the environmental group's claim is not seen as a challenge to a final rule, but rather as a claim that the Agency has failed to perform a discretionary act. Such claims must be brought in district court.

Counsel for Petitioner
Howard I. Fox
Sierra Club Legal Defense Fund
1531 P St. NW, Ste. 200, Washington DC 20005
(202) 667-4500

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

Before: MIKVA, Chief Judge, HENDERSON and RANDOLPH, Circuit Judges.