Hazardous Waste Treatment Council v. EPA
Citation: 19 ELR 21398
No. Nos. 86-1657 et al., 886 F.2d 355/30 ERC 1233/(D.C. Cir., 09/15/1989)
The court generally upholds the Environmental Protection Agency's (EPA's) regulations implementing the Resource Conservation and Recovery Act's (RCRA's) prohibition on land disposal of hazardous solvents and dioxins. The court first holds that EPA's decision to use technology-based standards alone, instead of combining them with risk-based standards, was a reasonable interpretation of RCRA § 3004(m). The language of RCRA § 3004(m) does not foreclose EPA from adopting treatment standards based on levels achievable by the best demonstrated available technology (BDAT). EPA's decision to rely on BDAT was reasonable given the uncertainties inherent in the alternative approach of using risk-based screening levels. The court holds, however, that EPA did not adequately explain its decision to adopt a BDAT approach in the final rule after expressing a tentative preference in its proposed rule for an approach that combined screening levels and BDAT. The court holds that EPA's rule that allows generators to store wastes on site for up to a year unless EPA can show that the storage was not solely for the purpose of accumulating waste suitable for treatment is consistent with RCRA § 3004(j). This rule does not impermissibly shift the burden of proof to EPA to show that generators' motives in storing wastes are inconsistent with § 3004(j). The rule places no evidentiary burden on EPA that it would not otherwise bear under the Administrative Procedure Act. The court holds that EPA's decision to allow generators to rely in certain circumstances on their knowledge of their waste to certify that it meets treatment standards is reasonable. Although wastes requiring treatment must be tested before being sent to land disposal facilities, it is not arbitrary and capricious for EPA to fail to require generators to test their waste streams to certify that admittedly restricted wastes conform to the treatment standards. EPA reasonably concluded that while generators can be expected to have reasonable knowledge of their wastes, off-site treatment facilities do not always have similar familiarity with the waste they handle.
A concurring judge would not have reached the question of whether EPA's selection of BDAT treatment levels was reasonable. It is inappropriate to address this issue in the absence of a valid EPA explanation.
Counsel for Petitioners
Robert Timothy McCrum, Jane L. Bloom, David R. Case, Donald S. Strait, Ridgeway M. Hall
Hazardous Waste Treatment Council
1440 New York Ave. NW, Washington DC 20005
Counsel for Respondent
Steven E. Silverman
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
Lisa F. Ryan, Mary Elizabeth Ward
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
Before: WALD, Chief Judge, SILBERMAN and D. H. GINSBURG, Circuit Judges.