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Chemical Waste Management, Inc. v. EPA

Citation: 19 ELR 20641
No. Nos. 88-1581 et al., 869 F.2d 1526/29 ERC 1185/(D.C. Cir., 03/14/1989)

The court holds that the Environmental Protection Agency's (EPA's) decision to apply Resource Conservation and Recovery Act (RCRA) land disposal treatment standards to leachate derived from wastes that were not deemed hazardous when they were disposed is reasonable. In August 1988, EPA announced that leachate that is actively managed after the underlying wastes have been listed as hazardous under RCRA will itself be deemed a hazardous waste and must be treated to the applicable standards. The regulations also provided that media, such as soil and groundwater, that are contaminated by listed hazardous wastes must themselves be treated as hazardous waste. The court first holds that the question of whether treatment standards for leachate derived from more than one hazardous waste can be applied to leachate derived from wastes listed as hazardous subsequent to their disposal is ripe for judicial review. Although under a proposed settlement among the parties treatment standards for multiple waste leachate will not be promulgated until 1990, the action challenged here is final action within the meaning of § 704 of the Administrative Procedure Act (APA). Moreover, EPA's "retroactive" leachate principle has immediate consequences for petitioners, since the settlement leaves the Agency free to require that any single-waste leachate be treated to meet the standards required for the underlying waste. Even if consequences of the rule would only be felt in the future, that future is sufficiently certain to warrant immediate review. The court next holds that EPA's notice and comment rulemaking procedures did not violate the APA. It is not clear that the Agency was required to comply with the APA's notice and comment provisions, since the requirements do not apply to interpretive rules. Even if the rules were substantive, however, EPA provided sufficient opportunity for notice and comment. Although the language in the notice of proposed rulemaking does not explicitly invite comments, it provided interested parties with a clear indication of the Agency's intended course of action. In announcing the final rule, EPA extensively discussed the comments it had received, and explained its reasons for concluding that leachate derived from wastes listed as hazardous after they were disposed should be considered hazardous. On the merits, the court holds that the regulation does not operate retroactively. EPA has made no effort to impose penalties on the disposal of waste that was not deemed hazardous when it was disposed, and the regulation does not require cleanup of any newly listed wastes. The preamble notes that only leachate that is actively managed after the effective date of the land disposal restriction for the underlying waste is included. Although EPA itself stated in its explanation of the final rule that hazardous waste listings are retroactive, the statement read in context means only that the hazardousness of leachate will depend on the composition of underlying wastes, not on the time at which those wastes were disposed.

Turning to the regulation providing that contaminated environmental media are to be treated as hazardous wastes, the court first addresses the applicability of the APA's notice and comment requirements. According to EPA, the rule is not a new regulation; the Agency argues that the challenged rule is simply the application to environmental media of regulations adopted in 1980. If EPA is correct, notice and comment in 1988 was not required; if it is wrong, notice and comment in 1988 cannot help. The court holds that petitioners' claim is not time-barred, since the 1980 rule did not clearly provide that contaminated environmental media would be considered hazardous wastes. Petitioners' challenge is not a direct attack on the 1980 rule, which would be untimely, but rather a challenge to EPA's interpretation of the rule. The court holds that EPA's interpretation of the 1980 rule is reasonable. The rule provides that hazardous waste will continue to be considered hazardous, unless it is delisted. EPA's position that hazardous waste cannot be presumed to change its character when it is combined with an environmental medium such as soil or groundwater is plausible on its face. The Agency's current treatment of contaminated media is consistent with the 1980 rule, and demonstrates that the rule is part of a coherent regulatory framework. EPA has also provided examples where its interpretation of the 1980 rule, though not appearing in the Federal Register, has been applied to individual cases. Moreover, a provision in the 1984 RCRA amendments exempting for a two-year period disposal of media contaminated as a result of corrective action from certain land disposal prohibitions would be superfluous unless contaminated soil would otherwise fall within the prohibition.

Counsel for Petitioners
Angus Macbeth
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 429-4000

Richard A. Flye
McKenna, Conner & Cuneo
1575 I St. NW, Washington DC 20005
(202) 789-7500

J. Brian Molloy, Douglas H. Green
Piper & Marbury
1200 19th St. NW, Washington DC 20036
(202) 861-3900

Joan Z. Bernstein
3003 Butterfield Rd., Oakbrook IL 60521
(313) 218-1500

David F. Zoll
Covington & Burling
1201 Pennsylvania Ave., Washington DC 20006
(202) 662-6000

Counsel for Respondent
Daniel S. Goodman
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2216

Before: WALD, Chief Judge and MIKVA, Circuit Judge, and REVERCOMB,* District Judge.