ELR Citation: ELR 20376
No(s). s. 89-1629 et al (D.C. Cir. Dec 31, 1991)

The court upholds the Environmental Protection Agency's (EPA's) high-volume and low-hazard criteria rules promulgated for implementing the "special waste" exemption under Subtitle C of the Resource Conservation and Recovery Act (RCRA), which deal with RCRA's applicability to mine processing wastes. Before RCRA Subtitle C regulations took effect, Congress passed the Solid Waste Disposal Act Amendments of 1980 containing the Bevill amendment, which prohibited EPA from regulating mining and mining processing wastes as Subtitle C hazardous wastes, pending EPA studies and rulemakings on the health and environmental effects of solid waste from the extraction, beneficiation, and processing of ores and minerals. Through a series of rulemakings, EPA developed criteria for determining "special wastes" that are excluded from Subtitle C regulation, and these appeals followed.

The court notes that it will review EPA's rules with the deference mandated by the U.S. Supreme Court's Chevron test, in order to determine whether the agency's interpretation of "special waste" is based on a permissible construction of the statute. The court first holds that EPA's high-volume criteria are based on a permissible interpretation of the Bevill amendment. Congress intended the Bevill exclusion to encompass only those waste streams that are generated in quantities considered potentially unmanageable under Subtitle C regulations. Thus, EPA viewed volume as the most relevant and objective measure of the technical feasibility of subjecting waste to Subtitle C controls. EPA logically concluded that comparison of mineral processing waste volumes with those of wastes managed under Subtitle C controls was the most appropriate analytical basis for developing the high-volume criterion. EPA's final high-volume criteria—45,000 meters/year per facility for solids; 1,000,000 meters/year per facility for liquids—is derived from EPA's examination of the generation rates of Subtitle C wastes managed at facilities disposing of solid/sludge materials to landfills, or employing wastewater treatment processes, surface impoundments, and injection wells to manage hazardous liquid wastes. The final criteria thus represent the largest individual waste stream managed by the facility at the 95th percentile of the relevant distribution. A high-volume standard for Bevill mineral processing wastes is in order.

The court next holds that the high-volume criteria were developed in accord with the Administrative Procedure Act (APA), even though EPA used supplementary data, unavailable during the notice-and-comment period, to check or confirm prior assessments. EPA replaced its 1985 Biennial Report of Hazardous Waste Generators and Treatment, Storage, and Disposal Facilities Regulated Under RCRA with its National Survey of Hazardous Waste Treatment, Storage, Disposal, and Recycling Facilities (TSDR Survey) as the source of data on which the final quantitative volumetric measures were based. However, no evidence was presented pointing to inaccuracies in the data contained in the TSDR Survey, nor does the record suggest that EPA hid or disguised the information it used, or otherwise conducted the rulemaking in bad faith. Moreover, EPA's methodology in selecting the high-volume criteria did not change significantly from the proposed notices to the final rule, and petitioners had ample opportunity to criticize EPA's approach.

The court holds that the high-volume criteria reflect methodological choices properly within EPA's discretion. Given the absence of more precise instructions from Congress, EPA provided a reasonable explanation for its decision to reject use of the lowest of extraction and beneficiation waste generation rates to establish the high-volume standard, in favor of basing the standard on the volumes of waste generated and managed at Subtitle C regulated facilities, and to use generation rates of other Bevill wastes as a reality check on the volume thresholds selected. To the extent that petitioners quarrel with EPA's methodology or selection of a precise numerical measure, they have failed to demonstrate the Agency acted in an arbitrary and capricious manner. Moreover, EPA's decision to establish separate high-volume thresholds for liquid and solid mineral processing wastes is rooted in the Agency's legitimate focus on technical feasibility. EPA proposed setting separate volumetric standards in 1989, noting that Subtitle C facilities typically manage liquid wastes in far larger volumes than solid wastes. EPA's selection of the 95th percentile as the statistical cutoff to define the numerical high-volume standards, resulting in a five-percent overlap between the generation rates of large-volume Subtitle C wastes and Bevill mineral processing wastes, was within a zone of reasonableness warranting judicial deference.

Turning to EPA's low-hazard criterion and tests for special wastes covered by the Bevill amendment, the court holds that they are compatible with the legislative design, are consistent with the court's previous decisions in this case, and are reasonably explained. Interpretation of the Bevill amendment to exclude wastes that are clearly not low hazard is consistent with congressional intent and the regulatory history of the special waste concept. Contrary to petitioners' argument that applying a low-hazard screening criteria has made hazard the determinative factor in establishing the regulatory status of high-volume processing wastes, it is not inconsistent to interpret the Bevill amendment as requiring a context-specific determination of hazard as one of several factors to be considered in regulating wastes from the extraction and beneficiation stages of mining, and, at the same time, to construe the amendment's terms to exclude from Bevill's scope processing wastes that do not qualify as low hazard. This court's previous holding that EPA is not required to regulate high-volume special wastes under Subtitle C simply because they exhibit a RCRA hazardous characteristic does not mean that EPA is prohibited from using hazard as a criterion, along with volume, to determine which processing wastes fit the special waste category.

The court next holds that EPA's 50-percent rule, which interprets the Bevill amendment as applying only to wastes from mineral processing operations with feedstocks containing less than 50 percent scrap materials, is reasonable. Although application of the rule may have an effect on the economics of the production process, which is beyond EPA's authority, it is not for that reason a regulation of the production process itself. EPA must distinguish somehow between primary mineral processing operations, which qualify as Bevill mineral processing, and secondary processing operations, which do not. Use of the 50-percent rule to make the determination is reasonable. The court next holds that EPA's interpretation that the Bevill amendment excludes any waste stream that did not exist when the 1989 rule was promulgated and to any extant waste stream that did not meet the Bevill criteria at the time of rulemaking is reasonable. Although the Bevill amendment is silent on future waste streams, the statutory provision directing EPA to study Bevill wastes suggests by its terms that a one-time study is sufficient. The court next holds that it was reasonable for EPA, in the course of implementing the Bevill amendment, to address whether a waste that is denied Bevill status is nonetheless eligible for relaxed regulation pursuant to RCRA §3004(x), which authorizes EPA to relax Subtitle C regulations for the extraction, beneficiation, or processing of ores and minerals. Because the relevant legislative history is ambiguous, the court defers to EPA's reading of §3004(x) as coterminous with the Bevill amendment. However, the court remands the Bevill mixture rule, which was based on the Subtitle C mixture rule, because the D.C. Circuit has vacated the Subtitle C mixture rule. If EPA desires to, and successfully does, repromulgate the Subtitle C rule, it will similarly be able to repromulgate the Bevill rule and attempt to justify it by reference to repromulgation of the Subtitle C rule.

The court next holds that EPA failed to articulate a reasonable justification for denying Bevill exclusion to wastes generated using a four-step chloride process. During this process, an iron chloride acid waste is produced in step one but removed from the vessel at step three. EPA argued that this is a mineral processing waste that does not qualify for the Bevill exclusion, while the chemical manufacturer argued that it is waste from the beneficiation step, and thus included in the exclusion. On remand, EPA must articulate a reasonable justification for its choice on the basis of some policy ground.

The court next rejects petitioners' challenges to EPA's chrome tailings, lead process wastewater, and air pollution control rulings. First, the court holds that EPA's decision not to include landfill waste within the Bevill exclusion, while including treated chrome wastes, did not violate the APA's notice and comment requirements. Petitioners had the opportunity to argue to EPA that their waste satisfied the Bevill requirements, as did those petitioning for exclusion for chrome tailings. It was reasonable for EPA to determine that landfill wastes do not satisfy the high-volume criteria. EPA's refusal to provide further opportunity to comment on the fact that others' arguments were successful and petitioners' were not does not violate the APA. Second, EPA was justified in choosing to measure lead waste streams on an as-generated rather than an as-managed basis in order to ensure that the high-volume criteria would include those wastes not amenable to Subtitle C regulation. Finally, the court holds that EPA's determination that lightweight aggregate air pollution control dust/sludge does not meet the high-volume criteria violated notice-and-comment requirements. EPA changed its calculations for making total per-facility volume measurements and notified affected industry members only one day before the final rule was signed.

Counsel for Petitioners
Donald J. Patterson Jr., John N. Hanson, Aaron H. Goldberg
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Corrine A. Goldstein
Covington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

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

Randolph L. Hill
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before: RUTH B. GINSBURG, D.H. GINSBURG, and RANDOLPH, Circuit Judges.