Court: Court of Appeals for the D.C. Circuit; September 25, 1992; Federal Appellate Court
The Hazardous and Solid Waste Amendments of 1984 prohibit the land disposal of certain hazardous wastes unless specific criteria are met, requiring the EPA to implement a phased ban. This case involves challenges to the "third-third" rule regulating the land disposal of hazardous wastes based on defined characteristics. Industry petitioners contest the EPA's authority to mandate treatment levels exceeding the removal of hazardous attributes, while the Fertilizer Institute raises objections to a prohibition on the dilution of certain wastes before their discharge into U.S. waters. Additionally, three companies criticize new testing requirements at disposal facilities as arbitrary and unclear. The court denies all petitions from industry petitioners, affirming the EPA’s authority under the Resource Conservation and Recovery Act (RCRA) to impose stringent treatment requirements and confirming adequate notice regarding dilution prohibitions.
Conversely, NRDC petitioners, including environmental organizations and the Hazardous Waste Treatment Council, argue that the new "deactivation" treatment standard improperly permits dilution of characteristic wastes, allows untreated wastes into surface impoundments and injection wells, arbitrarily sets treatment standards for chromium and lead, and violates the Bevill Amendment by exempting certain wastes. Their challenges are partially upheld; while dilution may qualify as treatment under the statute, it cannot compromise human health or the environment. The EPA's failure to clarify that dilution meets treatment standards for some wastes leads to the vacating of that standard. However, dilution in Clean Water Act facilities is permitted as long as it minimizes toxicity in discharged waste consistent with RCRA.
Disposal of wastes in underground injection wells is permissible if hazardous characteristics are eliminated and health and environmental risks are minimized. The EPA's lead and chromium standards are remanded due to reliance on unsupported data. The exemption from Subtitle C regulation of wastes burned with those exempt under the Bevill Amendment is also remanded for further rulemaking review. Chemical Waste Management's petition regarding test compliance procedures is denied, with testing procedures to be included in permits, allowing for resolution of uncertainties during the permit-writing process.
The document outlines the statutory and regulatory framework of Subtitle C of the Resource Conservation and Recovery Act (RCRA), which governs hazardous waste treatment, storage, and disposal. Wastes are classified as hazardous through either their inherent characteristics—ignitability, corrosivity, reactivity, and EP toxicity—or by EPA rulemaking. Characteristic wastes, which account for over fifty percent of hazardous waste generated in the U.S., remain hazardous until they no longer exhibit these characteristics. While the EPA can list specific acutely hazardous wastes, delisting requires a formal petition and rulemaking process. Hazardous waste management is regulated under RCRA's comprehensive "cradle-to-grave" system, with significant regulations established post-1984 amendments to prohibit land disposal of many hazardous wastes, emphasizing minimal reliance on such methods.
A prohibition on the disposal of hazardous waste is established unless the waste is treated to mitigate health and environmental risks from toxic components, or unless the EPA confirms no hazardous constituent migration will occur post-disposal. The 1984 Amendments mandated a phased approach for implementing a land disposal ban, specifically prohibiting the land disposal of hazardous wastes with solvents and dioxins after November 8, 1986, and a select list of other wastes after July 8, 1987. The EPA was tasked with ranking remaining hazardous wastes based on their hazard and annual generation volume, dividing them into three groups for regulation. If regulations for the last third of these wastes were not promulgated by May 8, 1990, they could not be land disposed.
The final regulations must ban certain land disposal methods unless determined protective of health and the environment, with proof required that there will be no migration of hazardous constituents for the duration the waste remains hazardous. The Administrator must also set treatment standards that must be met for land disposal authorization. These standards aim to significantly reduce waste toxicity and the likelihood of hazardous constituent migration.
The regulations being reviewed pertain to the last third of ranked wastes, primarily focusing on treatment standards for characteristic wastes. They also modify regulations for characteristic wastes managed under the Clean Water Act and those disposed of in underground injection wells regulated under the Safe Drinking Water Act. Compliance requirements are established, and fourteen consolidated petitions for review present issues grouped into three categories: industry challenges against treatment standards, concerns regarding the Clean Water Act and underground injection wells, and other remaining issues.
In terms of treatment standards for characteristic wastes, the EPA initially identified four hazardous characteristics: ignitability, corrosivity, reactivity, and EP toxicity. The proposed and final regulations categorize characteristic wastes and suggest specific treatment standards. For instance, corrosive waste must be treated to achieve a pH between six and nine to no longer be classified as hazardous.
The EPA indicated that for certain subcategories of hazardous waste, it could mandate treatment beyond the characteristic levels, which it believed were not the limits of its authority under section 3004(m). Once a waste is classified under this section, it must meet specific treatment standards until compliance is achieved. The EPA's mandate is to ensure that hazardous wastes destined for land disposal are treated effectively to reduce toxicity and minimize risks to health and the environment.
The proposed treatment methods largely followed previous EPA determinations, emphasizing the use of "best demonstrated available technologies." While specific technologies were designated for most characteristic wastes, some flexibility was allowed through a "deactivation" category for certain subcategories, permitting generators to choose appropriate treatment methods based on the unique characteristics of their wastes.
The EPA explicitly prohibited dilution as an acceptable treatment alternative under its land-ban program, affirming that no party involved in hazardous waste management could dilute restricted wastes to comply with treatment standards or to bypass land disposal prohibitions under RCRA section 3004. This prohibition was reiterated in the context of ignitable wastes, where dilution would violate regulatory standards and potentially generate hazardous emissions.
Reactive wastes, including cyanides and sulfides, were to be treated as toxic, with dilution not considered a legitimate treatment method due to safety concerns regarding violent reactions. For corrosive wastes, the EPA recommended neutralization rather than dilution to manage their pH, as dilution would only increase waste volume without effectively treating the hazardous components. Overall, the EPA underscored the necessity for substantial treatment to reduce the toxicity or mobility of prohibited wastes rather than relying on dilution or mixing with other wastes to achieve compliance.
Any dilution of prohibited waste that does not substantially reduce its toxicity or mobility is deemed impermissible under section 3004(m). For organic constituents, reducing toxicity necessitates their actual removal or a chemical change. The Agency sought input on whether dilution could substitute for treatment standards by rendering hazardous waste non-hazardous before land disposal.
In the final rule, the EPA revised treatment standards for characteristic wastes but maintained its authority to require treatment below characteristic levels. Due to conflicting Congressional guidance on land disposal prohibitions, the EPA believes it can reconcile these conflicts and harmonize regulations. It agrees that section 3004(g) applies only to hazardous wastes, thus the applicability of land disposal regulations should be assessed at the disposal moment. The EPA concluded that it has the discretion to regulate waste at the generation or disposal point and decided to apply its authority cautiously.
The final regulations mandate treatment below characteristic levels for only a few wastes, specifically ignitable liquids with high total organic carbons and reactive cyanides, while treatment to characteristic levels is deemed adequate for most characteristic wastes. The Agency differentiated the environmental concerns related to ignitability, corrosivity, and reactivity from those of EP toxic wastes, establishing that toxic wastes necessitate treatment standards below the characteristic level due to cumulative impacts.
The EPA has shifted its stance on technology-based treatment and now accepts dilution as a valid method for non-toxic hazardous characteristic wastes, categorizing it under the "deactivation" treatment standard. The final rule permits any method that effectively removes hazardous characteristics like ignitability, corrosivity, and reactivity.
The EPA has granted discretion regarding the treatment of hazardous wastes, allowing methods such as neutralization, incineration, and dilution for non-toxic wastes, while maintaining a prohibition on dilution for toxic wastes. The Agency acknowledges that mixing waste streams can effectively treat mostly corrosive, reactive, or ignitable wastes but admits it does not fully mitigate the risks of toxic constituents. It has determined that more comprehensive solutions for these issues should be addressed in future rulemakings, citing the constraints of a statutory deadline from May 8, 1990.
The EPA mandates specific technological treatments for three subcategories of characteristic wastes: reactive sulfides, reactive cyanides, and ignitable liquid nonwastewater wastes with over ten percent total organic compounds. For other categories, including corrosive and various ignitable wastes, dilution is permitted.
Industry and NRDC petitioners challenge the EPA's treatment standards under the Resource Conservation and Recovery Act (RCRA), analyzing the claims based on the Chevron U.S.A. Inc. v. NRDC standard, which allows EPA discretion unless Congress has directly addressed the issue. Industry petitioners argue that RCRA does not grant the EPA authority to impose treatment mandates after a waste has been determined non-hazardous, asserting that RCRA's cradle-to-grave system only applies as long as waste remains hazardous. They cite provisions within RCRA that emphasize its focus on hazardous waste management.
In contrast, the EPA contends that the relevant provisions allow it to enforce land disposal restrictions whenever deemed necessary, arguing that treatment must occur before disposal to comply with regulations aimed at preventing the dilution of hazardous waste prior to landfill disposal.
Industry petitioners must demonstrate that Congress has clearly articulated its intent regarding the regulation of hazardous waste to succeed in their Chevron step one argument. The statute and existing case law do not support the petitioners' claim that Congress intended a regulatory system allowing for continuous reclassification of hazardous waste. Instead, the law dictates that once a waste is generated and identified as hazardous, it is immediately subject to the land disposal program.
The Resource Conservation and Recovery Act (RCRA) mandates the Administrator to establish regulations for identifying hazardous waste, which upon designation are automatically included in the regulatory framework. The 1984 Amendments to the RCRA further emphasize that the Administrator must ban land disposal of hazardous waste identified under specific sections of the law. This interpretation aligns with prior rulings indicating that regulation begins once a waste is recognized as hazardous.
While petitioners assert that a previous case, American Mining Congress v. EPA, supports their position, the ruling clarified that EPA authority only extends to waste classified as hazardous and that both solid and hazardous waste definitions are essential for entry into RCRA's regulatory system. The 1984 Amendments also empower the EPA to require treatment of hazardous waste beyond merely addressing its hazardous characteristics. Specifically, Section 3004(g)(5) and subsection (m)(1) demand that treatment methods significantly reduce toxicity and the likelihood of hazardous constituents migrating from the waste, addressing broader health and environmental concerns.
Previous rulings criticized the EPA for imposing treatment standards on all solvents rather than those posing risks, emphasizing that treatment must minimize actual health and environmental threats.
Sections 3004(g)(5) and (m) grant the EPA authority to prohibit land disposal of certain wastes unless they have undergone treatment to mitigate risks beyond their inherent characteristics. The EPA’s regulatory jurisdiction over these wastes from their generation is deemed a valid interpretation of the statute. The NRDC petitioners seek to vacate the deactivation treatment standard for characteristic wastes, arguing it permits dilution—merely reducing ignitability, corrosiveness, or reactivity—rather than requiring technological treatment. They assert that treatment must always involve technology, as dilution does not meet the statutory requirement to minimize both short- and long-term health and environmental threats. The petitioners also argue that the Agency’s interpretation contravenes the Chevron standard, as it cannot justify not enforcing mandated treatment levels due to time pressures.
The court finds that, theoretically, dilution can qualify as an acceptable treatment method for characteristic wastes. It does not interpret the 1984 Amendments as necessitating the use of the best available technologies in all cases. Section 3004(m)(1) instructs the Administrator to identify treatment methods that significantly reduce toxicity or the risk of hazardous constituent migration to minimize health and environmental threats. While the NRDC petitioners contend that dilution cannot be classified as a treatment method, the broad statutory definition of "treatment" includes dilution. Although Congress intended for treatment to meet strict standards, it did not explicitly prohibit dilution as a treatment methodology. The petitioners reference legislative history suggesting Congress aimed to prevent dilution, but the court concludes that the law does not unambiguously restrict dilution as a treatment option.
The Senate Report asserts that the dilution of hazardous wastes through the addition of other materials during handling, transportation, treatment, or storage is an unacceptable treatment method for reducing hazardous constituents' concentration. Only dilution that occurs as a normal part of the waste generation process can be considered in determining concentration levels. Additionally, Senator Moynihan's comments emphasize that the treatment standards set by the Agency should reflect the best achievable methods, but the interpretation that only technological treatment meets section 3004(m) is contested. The 1984 Amendments mandated the treatment of certain toxic wastes but did not specifically require the treatment of ICR wastes. The caution against dilution must be understood within this legislative context, particularly regarding highly mobile and toxic wastes.
Importantly, Congress did not directly address the dilution of ICR wastes, leading to uncertainty about whether dilution meets the section 3004(m) treatment standards, which mandate the removal of hazardous constituents posing threats to health or the environment. The EPA regulations must align with these requirements. The report expresses concern that accepting dilution as a treatment method for ICR wastes may create issues, as dilution does not guarantee safety and may not effectively address the presence of toxic constituents. The final regulations indicate that while deactivation addresses some environmental concerns, it does not ensure that the waste is safe or promote the minimization of hazardous characteristics. The current deactivation standards are deemed acceptable only for corrosive wastes, provided they do not contain hazardous constituents that would pose ongoing risks following dilution.
The EPA acknowledged that some ignitable wastes, even after dilution, may retain hazardous or toxic constituents at levels that could threaten human health and the environment. Consequently, the proposed rule prohibited the dilution of all ignitable wastes due to concerns about volatile organic compounds (VOCs) being emitted during the dilution process and the potential for wastes to regain ignitability. While the final regulations allowed dilution if it only removed the ignitable characteristic, this was restricted to ignitable wastes containing less than ten percent total organic compounds. The EPA suggested that the problem of emissions could be managed with future air emission limits, but this was deemed insufficient. The ruling vacated this aspect of the rule, requiring the EPA to identify ignitable wastes that pose risks post-dilution and to develop effective treatment methods while addressing VOC emissions.
Regarding corrosive wastes, the EPA contended that their primary issue is their corrosiveness, denying the presence of hazardous constituents. However, NRDC petitioners argued that some corrosive wastes contain toxic constituents and highlighted the EPA's preference for neutralization over dilution, which merely increases volume without treating hazardous materials. They noted that corrosive wastes disposed of via deep well injection often contain toxic organics, and those sent to landfills may contain heavy metals. The petitioners criticized dilution with water as ineffective for treating toxic constituents. The regulations presented some ambiguity concerning the presence of hazardous constituents in corrosive wastes.
The EPA indicates that corrosive wastes may require additional treatment beyond neutralization, incineration, or recovery due to other hazardous properties. Corrosivity is distinct from the EP Toxic definition, focusing on environmental mass-loading concerns. If a corrosive waste exhibits toxicity, it must be treated according to the toxic constituent's standard. Questions arise regarding the treatment of wastes that are corrosive but not EP toxic, particularly if toxic constituents are present in insufficient quantities. While the EPA claims that dilution can be an acceptable treatment for corrosive wastes, it cannot solely rely on assurances that these wastes do not pose additional hazards without supporting evidence. If substantiated, the EPA could amend its regulations accordingly.
Regarding reactive wastes, the EPA acknowledges that hazardous constituents may remain after deactivation but has not identified specific constituents apart from reactive cyanides and sulfides. The lack of evidence prevents vacating the deactivation standard for other reactive wastes due to potential constituent migration. The EPA has inadequately addressed concerns about dilution potentially causing reactive wastes to exhibit dangerous characteristics. Although the final regulations allow dilution with certain organic liquids prior to water dilution to mitigate risks, they do not guarantee safety from violent reactions. The regulations permit dilution as a treatment method to remove hazardous characteristics, leading to the narrow grant of a petition for review concerning reactive wastes.
The Agency is required to limit waste dilution methods to those that mitigate the risk of violent reactions, establish preventive measures, mandate technological treatment, or prove, with evidence, that there is no significant risk of reaction for the three subcategories of reactive wastes eligible for deactivation. The Agency cannot rely on future rulemakings to address unresolved hazardous constituent issues, as Congress imposed strict deadlines in the 1984 Amendments, which state that any hazardous waste not regulated by the specified date is subject to land disposal denial. The EPA's final rule is viewed as its complete response to Congressional mandates.
The excerpt addresses challenges to the EPA's new dilution permissions, which aim to align Resource Conservation and Recovery Act (RCRA) requirements with the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA). The EPA amended a rule that previously prohibited waste dilution in favor of treatment, now allowing centralized CWA treatment systems to aggregate certain hazardous waste streams, resulting in dilution that ostensibly eliminates hazardous characteristics without treatment. This rule permits unlined surface impoundments to be used in treatment processes.
Additionally, operators of deep injection wells may dilute hazardous wastes prior to underground injection. The Natural Resources Defense Council (NRDC) contends that this dilution and aggregation approach conflicts with RCRA requirements, which stipulate that hazardous waste must be treated as soon as it shows hazardous characteristics and cannot exit the RCRA system until treated or disposed of in compliance with RCRA regulations. NRDC argues that placing "decharacterized" wastes in CWA impoundments before RCRA treatment violates land disposal prohibitions.
The Fertilizer Institute challenges the EPA's dilution guidance as inadequately vetted and excessively restrictive. The rulings indicate partial acceptance of NRDC's challenges while denying the Fertilizer Institute's claims, affirming that CWA dilution permissions are valid if waste is properly decharacterized and treated per RCRA standards before being placed in CWA facilities. Aggregation prior to treatment is not inherently problematic, as it occurs in tanks and does not constitute land disposal, and RCRA does not mandate treatment before aggregation.
Aggregation and dilution of waste in tanks can meet RCRA requirements if they remove waste characteristics and minimize constituent toxicity. If these processes do not achieve this, further treatment is mandated by RCRA. When aggregation and dilution eliminate waste characteristics but do not minimize toxicity, additional treatment can occur after the waste exits the CWA tank and enters a surface impoundment. Although surface impoundments are classified as land disposal, treatment within them is permissible under RCRA when it accommodates the CWA. However, all treatment in these impoundments must comply with RCRA before discharging into U.S. waters or publicly owned treatment works (POTWs). If the treatment effectively reduces toxicity as per RCRA standards, no further treatment is necessary.
The Clean Water Act (CWA) seeks to prevent pollutant discharge into U.S. navigable waters, allowing discharge only under a permit that stipulates pollutant limits. CWA permits are managed through the National Pollutant Discharge Elimination System (NPDES). Treatment facilities often aggregate waste streams from various sources, and these are sometimes placed in unlined surface impoundments, which are regulated under RCRA subtitle D for solid wastes. Although these facilities do not handle listed hazardous wastes, prior to certain classifications, unlined surface impoundments did not raise RCRA concerns. Under earlier RCRA rules, the EPA also restricted the dilution of hazardous waste.
Once a waste is classified as hazardous under RCRA, it must undergo "treatment," with dilution explicitly prohibited as a substitute for adequate treatment to comply with regulatory standards. No entity involved in the management of hazardous waste may dilute such waste to evade RCRA's treatment requirements or any prohibitions related to land disposal. The EPA has amended regulations to clarify that while dilution is not permissible to circumvent treatment requirements, legitimate aggregation of waste streams for centralized treatment is allowed.
Prior to the third-third rule, CWA treatment facilities managing characteristic wastes faced no RCRA land-ban restrictions. Post-adoption of this rule, these facilities became subject to RCRA’s Subtitle C regulations. For listed wastes, CWA and RCRA requirements generally do not overlap regarding wastewater discharges. However, mixing hazardous characteristic wastes with other waste streams could trigger dilution rules if these mixed wastes are placed in surface impoundments, which are considered land disposal units.
The EPA recognized that imposing full RCRA compliance on CWA facilities could lead to significant regulatory challenges, as facilities would have to either treat waste before placement, secure variances, or comply with specific standards. In response, the EPA amended section 268.3 to allow CWA treatment facilities to aggregate characteristic wastes with other waste streams without violating dilution prohibitions, as long as no specific treatment method is mandated. Dilution is permissible for waste streams specifically allowed by the EPA, particularly ICR wastes and certain EP toxic metal wastes that require treatment to designated levels rather than by specified methods.
The EPA asserts that the dilution of hazardous waste prior to its placement in unlined surface impoundments satisfies RCRA requirements, claiming no land disposal of hazardous waste occurs. However, NRDC petitioners contest this amendment, arguing that RCRA mandates treatment before land disposal, unless a no-migration finding is made. CWA surface impoundments are considered land disposal facilities, and merely diluting hazardous waste does not fulfill RCRA's treatment requirements.
The analysis reiterates that RCRA section 3004(m)(1) necessitates treatment to both eliminate hazardous characteristics and significantly reduce the toxicity of hazardous constituents. Treatment standards are fundamental to RCRA’s hazardous waste management framework, and the EPA cannot establish different standards based on CWA systems. Although Congress allowed for regulatory accommodation between RCRA and CWA systems, RCRA treatment requirements must be adhered to when dealing with hazardous waste.
It is determined that diluted hazardous wastes can be placed in subtitle D surface impoundments as part of a CWA treatment train, but these wastes must undergo appropriate RCRA treatment before exiting CWA facilities. The EPA and NRDC petitioners disagree on the interpretation of the waste stream prior to placement in the impoundment. The EPA contends that once the characteristic is removed, the waste is no longer hazardous and does not require further treatment. Conversely, NRDC argues that the handling of hazardous waste does not comply with RCRA’s treatment standards before land disposal.
The section emphasizes that although dilution may reduce concentration, it does not prevent hazardous constituents from entering the environment. The definition of section 3004(m)(1) requires both the removal of hazardous characteristics and the reduction of hazardous constituents. The EPA's argument that treated wastes no longer classified as hazardous need not be treated contradicts its prior stance and fails to align with RCRA, which mandates complete treatment for hazardous waste destined for land disposal. Overall, while Congress acknowledged the need for accommodating existing environmental statutes, RCRA’s treatment requirements remain paramount.
The Administrator is tasked with integrating the provisions of this chapter for administration and enforcement while minimizing duplication with relevant federal statutes, including the Federal Water Pollution Control Act and the Safe Drinking Water Act, provided such integration aligns with the chapter's goals. The EPA's decision allowing "decharacterized" hazardous wastes in surface impoundments as part of ongoing treatment is deemed reasonable. Key points include:
1. Dilution that meets treatment definitions under RCRA section 3004(m)(1) requires no additional action.
2. If dilution does not reduce toxicity, decharacterized waste can only be placed in a surface impoundment if it complies with RCRA section 3004(m)(1).
3. The outcomes from CWA treatment facilities must effectively remove hazardous constituents, adhering to RCRA standards.
4. The EPA's approach aligns with RCRA’s objectives, emphasizing that treatment standards are critical for hazardous waste management.
5. RCRA does not mandate treatment before dilution or aggregation, nor does it prohibit dilution as part of treatment.
6. The diluted waste is not classified as hazardous when placed in the impoundment and is not permanently stored there.
7. This case contrasts with a prior ruling (API), where the court affirmed that hazardous wastes must be treated prior to land disposal.
The overall intent is to shift disposal practices from land disposal to recycling and treatment, emphasizing compliance with stringent treatment standards.
Hazardous wastes can be temporarily received in surface impoundments if certain technological standards are met, including double-lining, leachate collection, and groundwater monitoring as mandated by RCRA. Although the liquids placed in these impoundments are not classified as hazardous at that moment, they remain subject to RCRA regulations due to their untreated hazardous nature. Unlike in the API case, where "land treatment" was the final disposal method, the liquids here are only temporarily stored. RCRA's section 3004(m)(1) mandates that hazardous waste must be treated to remove hazardous constituents before environmental release. However, RCRA section 1006(b)(1) allows for some flexibility with existing Clean Water Act (CWA) systems, suggesting that temporary storage of decharacterized wastes is acceptable, provided it does not completely bypass treatment standards.
Regarding deep injection wells, the EPA has introduced a dilution rule permitting operators to dilute characteristic wastes prior to injection, similar to the CWA treatment rule. This dilution can occur for all hazardous wastes, even those requiring specific treatment methods. While petitioners argue this violates RCRA by allowing hazardous wastes to be disposed of before meeting treatment standards, the EPA contends that no hazardous wastes are injected and that this approach is necessary under the Safe Drinking Water Act (SDWA). The ruling affirms that dilution followed by deep well injection is permissible only if the dilution meets section 3004(m)(1) standards or if the waste will meet those standards post-injection, acknowledging the permanent nature of deep well disposal.
The third-third rule previously allowed deep injection wells to manage characteristic wastes without complying with Subtitle C requirements. In response, the EPA established section 148.1(d) to protect existing Safe Drinking Water Act (SDWA) systems, arguing that large facilities' mixing of waste streams to dilute characteristics before disposal should not necessitate restructuring or individual no-migration showings. The EPA contended that treatment to Resource Conservation and Recovery Act (RCRA) standards offers no additional environmental benefit compared to dilution and injection, claiming that underground injection at characteristic levels poses no greater threat to human health or the environment than treatment.
However, the court rejected the EPA's justifications, noting that unlike hazardous wastes under the Clean Water Act (CWA), injected wastes do not undergo further treatment. The court emphasized that allowing deep well injection operators to dilute characteristic wastes would undermine the balance established by Congress in RCRA, which mandates treatment to specific standards or site-specific no-migration findings prior to land disposal of hazardous waste. The court distinguished between RCRA and SDWA, asserting that while SDWA protects drinking water sources, RCRA focuses on preventing hazardous constituents' migration from injection zones. It found no legislative intent for RCRA and SDWA standards to be identical. The court noted that the EPA failed to provide evidence demonstrating that deep injection wells could effectively contain diluted wastes.
Native formation fluid injection zones already have significant concentrations of certain metals, and introducing additional metal-bearing fluids would not alter this characteristic of the subsurface environment. The metals' tendency to adhere within injection zones supports the environmental soundness of deep well disposal. The EPA's argument that modifying deep injection well systems to require pretreatment or case-by-case no-migration permits is burdensome is deemed irrelevant, as the statute lacks exemptions for retrofitted systems, with the only exception being a national capacity variance. The EPA can suspend regulations for up to two years if there is insufficient treatment capacity. Congress has mandated that no-migration showings are the sole alternative to treatment under RCRA, and the EPA’s general claims about the difficulty of obtaining no-migration variances are not pertinent, as each site requires individual certification.
Regarding treatment standards for lead wastewaters, the EPA established a standard of 5.0 mg/l, which is found to violate RCRA as it does not meet the treatment standard outlined in section 3004(m)(1). The EPA had previously proposed a more stringent treatment level of 0.04 mg/l for D008 lead wastewaters, but subsequently acknowledged that while achieving this level was impractical, treatment systems could potentially reduce lead concentrations below the characteristic level. Despite evidence supporting the possibility of lower treatment levels, the EPA rejected this based on an intent to integrate RCRA with other regulatory programs and to avoid disruptions to existing frameworks. The treatment standards in section 3004(m)(1) are central to RCRA, and concerns over existing treatment regimes cannot override these substantive requirements. The EPA’s logic pertaining to the point of disposal versus generation suggests it may not classify diluted waste as hazardous, raising further issues with its regulatory approach.
The EPA established a treatment standard for D008 wastewaters, allowing treaters and generators to select any precipitant to meet the characteristic level. The agency has not exempted lead wastewaters from Subtitle C regulations until disposal, despite acknowledging that treatment to 0.4 mg/L is feasible. Critics argue that the EPA’s 5.0 mg/L standard violates RCRA §3004(m)(1) by failing to minimize threats to health and the environment.
The Fertilizer Institute challenges two components of the third-third rule regarding the dilution prohibition under Rule 268.3(a). The EPA clarified that impermissible dilution occurs when waste streams are combined without appropriate treatment for each. The Institute claims these clarifications were issued without proper notice and are vague. Additionally, Rule 268.3(b) is criticized for arbitrarily excluding listed wastes with concentration-based treatment standards.
The EPA stated that central treatment facilities under the CWA must treat all incoming waste streams appropriately. According to Rule 268.3, dilution cannot substitute for adequate treatment or circumvent prohibitions, but aggregation of wastes amenable to the same treatment is permissible. The EPA provided examples, indicating impermissible dilution occurs when a metals-bearing waste is mixed with an organic stream and treated only for organics.
Under the Administrative Procedure Act, agencies must provide public notice and an opportunity to comment on proposed regulations. The final regulations do not need to match the proposals precisely but must allow for meaningful public engagement.
Final rules from the EPA only need to be a "logical outgrowth" of proposed regulations to avoid unnecessary procedural delays. The EPA adequately notified stakeholders that dilution meeting treatment levels without proper treatment is impermissible, aligning with congressional intent to prevent mixing prohibited wastes with large volumes of other wastes to meet treatment standards. The proposed rule contained examples of impermissible dilution, including scenarios where a waste stream treated for one type of waste could dilute other hazardous components, thereby failing to meet treatment requirements. The EPA clarified that dilution cannot substitute for proper treatment under section 3004(m). Although the EPA did not initially assert that dilution could be an acceptable treatment for certain characteristic wastes, it indicated that its prohibition on dilution applied when it was part of the treatment process. The EPA maintained that the standards of section 3004(m) are applicable to all wastes subject to prohibited land disposal. The Fertilizer Institute's claim that the EPA's guideline regarding the aggregation of wastes for treatment is vague was found unsubstantiated; the EPA's standards were deemed sufficiently clear, requiring that centralized treatment must address all constituent streams without constituting impermissible dilution.
The language described as "legitimately amenable" reflects a principle that allows the Agency to clarify its regulations through specific examples, ensuring applicability to concrete cases. The Petitioner has not demonstrated any significant factual scenarios that would cause substantial hardship due to uncertainty in the regulation's coverage. The Agency and courts maintain the authority to assess whether the regulations provide adequate notice in relevant situations. The Resource Conservation and Recovery Act (RCRA) establishes a permitting process for facilities to collaborate with the EPA on determining prohibited dilution practices.
Regarding Rule 268.3(b), which permits characteristic wastes without specified treatment methods to be aggregated in Clean Water Act (CWA) facilities, the Fertilizer Institute argues that it arbitrarily excludes listed wastes with established concentration-based treatment standards. This argument is rejected; the differentiation is based on the fundamental distinction between listed and characteristic wastes. The EPA argues its decision to exclude listed wastes is not arbitrary as they are treated in RCRA-compliant facilities, avoiding the need for retrofitting CWA facilities.
The EPA asserts that landfill leachates fall under subtitle C regulation, indicating any current mixing practices are illegal. However, the Petitioner raises concerns that CWA facilities not currently subject to RCRA regulations will face such requirements if characteristic wastes are not excluded or if new listed wastes are identified. Despite the EPA’s emphasis on retrofitting costs, the Petitioner’s argument fails as listed wastes contain inherently harmful substances that cannot be mitigated through dilution, unlike some characteristic wastes that can be permanently altered through dilution. Although the rule may be defensible on different grounds, it typically would not withstand remand without clear justification, as seen in SEC v. Chenery Corp. The EPA's final rule aligns dilution prohibition with its view that dilution can serve as acceptable treatment for certain characteristic wastes, aiming to ensure proper waste treatment methods are employed.
The EPA supports the mixing of waste streams to eliminate certain characteristics, particularly for wastes that are corrosive, reactive, or ignitable, as this method can effectively remove these properties. However, dilution is ineffective for treating toxic constituents, as it does not remove or treat them. Consequently, the EPA justifies the exclusion of listed wastes from Rule 268.3(b). Various petitioners contest aspects of the third-third rule, including the requirement for periodic waste testing, the adoption of a characteristic level for chromium treatment, the exemption of “Bevill” unit residue from RCRA standards, and the use of grab sampling instead of representative sampling for compliance.
The EPA's requirements for corroborative testing and grab sampling are upheld as reasonable, while the treatment standard for chromium and the Bevill unit exemption are remanded for reconsideration. Industry petitioners challenge the periodic testing requirement for disposal facilities, arguing that it is imposed only on off-site facilities, is duplicative, and is vague. The ruling clarifies that the requirement applies equally to on-site and off-site facilities, dismissing the first argument. The second argument regarding duplication is also rejected, affirming the necessity of periodic analysis to ensure compliance with treatment standards.
Corroborative testing is deemed essential by the EPA to ensure compliance with disposal regulations, as it provides a necessary verification that hazardous waste has been treated properly before disposal. This testing aims to enhance the legality of ultimate disposal and generate valuable compliance records. The rationale for this requirement is supported under the Chevron framework, emphasizing that it promotes adherence to Land Disposal Restrictions (LDR) by introducing an additional analysis just before waste is disposed of. The EPA identifies this point as critical, necessitating rigorous testing to confirm the waste's characteristics and legality for land disposal. The requirement is not considered vague, as specifics such as testing frequency can be determined on a case-by-case basis by permit writers and waste disposers, allowing for challenges to be made if necessary.
The NRDC petitioners contest the treatment standard set by the EPA for D007 chromium wastes, which was established at 5 mg/L for both nonwastewaters and wastewaters, following an initial proposed standard of .094 mg/L and .32 mg/L, respectively. The petitioners argue that this decision was based on a flawed interpretation of the evidence. Consequently, the EPA is instructed to reevaluate the treatment standards for D007 chromium wastes upon remand, taking into account the data provided by relevant stakeholders.
Petitioners claim that the EPA incorrectly calculated treatment standards for hazardous waste, relying on flawed data that included both effective and ineffective treatment, and inflated levels. They argue that this led the EPA to conclude a standard of 4.3 mg/L, while the data actually suggested a much lower threshold of under 2.1 mg/L. The EPA acknowledges its calculation errors but argues these were harmless since the cited data were not used in finalizing the standard. However, the reviewing authority finds substantial doubt regarding the EPA's conclusions, particularly since the final rule appears to reference the erroneous data in setting the D007 standard close to the erroneous 4.3 mg/L figure.
Additionally, the NRDC petitioners contest the EPA’s final rule that exempts hazardous waste burned in specific “Bevill” units (utility boilers, mining furnaces, and cement kilns) from certain regulatory requirements. This exemption stems from the Bevill Amendment of 1980, which suspended RCRA regulations for specific waste types generated from coal combustion and mineral processing until further studies and regulations are established.
The EPA has invoked the Bevill Amendment exemptions as outlined in 40 C.F.R. 261.4(b)(4, 7) and (8), which are incorporated into its final rule related to disposal restrictions for hazardous wastes. The rule clarifies that these exemptions do not alter existing definitions of solid or hazardous waste as set forth in 40 CFR 261.2-6. These provisions allow certain wastes to avoid being classified as prohibited from land disposal, which may override the Land Disposal Restrictions (LDR) point of generation evaluations. The EPA has not thoroughly examined these exclusions and will maintain them unless specific justifications are provided. Petitioners argue that the exemptions for hazardous wastes co-processed in Bevill units create a significant loophole in the land ban program, counter to Congressional intent. However, the panel concludes that the provision must be vacated and remanded for reconsideration because it was not properly addressed in the proceedings, failing to meet the Administrative Procedure Act's notice requirements.
Additionally, Chemical Waste Management (CWM) challenges the final rule's reliance on "grab" samples instead of "representative" samples for compliance and enforcement. A grab sample is a single sample from one location, while a representative sample encompasses multiple samples from various locations. The final rule stipulates that treatment standards are to be based on grab samples when both types of data are available, amending 40 C.F.R. 268.41(a) accordingly. CWM contends that this shift is inconsistent with other regulations that require representative sampling and is vague. The panel finds these objections unmeritorious.
CWM contends that the requirement for grab samples in compliance and enforcement testing is arbitrary, contrasting it with other regulations that mandate representative sampling for waste analysis plans. However, the EPA defends the grab sampling requirement, arguing that it is reasonable to use the same sampling method for compliance testing as that used to develop the standard. The EPA acknowledges that variations in sampling results can be adjusted by accounting for inherent content variability. If significant discrepancies arise, a waste disposer may use EPA-approved disposal plans as a defense in enforcement actions. The challenge regarding the vagueness of “grab sample” is dismissed, as the term is self-explanatory, and any ambiguity can be clarified in individual disposal permits.
In conclusion, some petitions for review are granted while others are denied. Additionally, under 42 U.S.C. 6924(g)(5), the Administrator must issue final regulations to prohibit certain land disposal methods for hazardous wastes unless determined protective of human health and the environment. These regulations must ensure no hazardous constituents migrate from disposal units. Furthermore, under 42 U.S.C. 6924(m), the Administrator will set treatment standards for hazardous wastes, ensuring they reduce toxicity and migration risks, allowing treated waste to be disposed of in compliant facilities. Any regulations under this subsection will take effect simultaneously with related prohibitions.
A joint motion by Industry Petitioners and Intervenors for a stay of mandate was partially granted by the Court, delaying the issuance of the Court's mandate until January 5, 1993. The entities involved include significant industry associations and companies, such as the American Iron and Steel Institute and The Dow Chemical Company. Industry petitioners argue that the EPA’s requirement to treat certain hazardous wastes below characteristic levels lacks deference due to previous inconsistent statements from the agency. However, the Court found that the statute mandates the EPA to require treatment beyond merely eliminating hazardous characteristics in certain circumstances, and thus did not address the petitioners' argument.
The document clarifies that aggregation and dilution of hazardous waste do not remove its classification as hazardous, prohibiting its temporary storage in unlined CWA surface impoundments. It emphasizes that the RCRA focuses on treating hazardous constituents, using cadmium as an example to illustrate that dilution does not decrease the total hazardous material entering the environment. The need for a RCRA treatment facility to manage hazardous waste properly, despite the CWA’s requirements, underscores the statutory obligations placed on the EPA and the implications of hazardous waste regulations.
Courts maintain that agency interpretations cannot override Congress's clearly expressed intent. Section 1006(b)(1) mandates that any "accommodation" adhere to the objectives of relevant environmental statutes, emphasizing that RCRA's treatment standards should prevail over more lenient options. If effluent entering a surface impoundment is not decharacterized, RCRA requires compliance with subtitle C standards, which also applies to hazardous materials generated during CWA treatment. The Class I deep injection wells discussed inject waste below drinking water sources, and while certain dilution rules exist, they do not apply to these wells. The derived-from rule, which states that any substance derived from hazardous waste is also hazardous, was previously vacated but has been repromulgated. Chemical Waste Management, Inc., RSR Corp., and The Dow Chemical Company are challenging the derived-from rule. The EPA asserts that testing waste prior to disposal is reasonable to ensure treatment standards are met. There are specific exclusions for certain solid wastes like fly ash and cement kiln dust from hazardous waste classification, provided conditions outlined in 40 C.F.R. 261.4(b)(4) and 266.112 are satisfied. The EPA and industry representatives acknowledge ongoing rulemaking related to these issues, which includes provisions for enforcement based on representative sampling.
