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Environmental Defense Fund v. EPA

ELR Citation: 18 ELR 21169
Nos. Nos. 86-1584, -1691, 852 F.2d 1316/27 ERC 1089/(D.C. Cir., 07/29/1988)

The court holds that the Environmental Protection Agency's (EPA's) withdrawal of its proposed relisting of six hazardous smelting wastes under the Resource Conservation and Recovery Act (RCRA) was arbitrary and capricious. A 1980 RCRA amendment known as the Bevill Amendment required EPA to exclude solid waste generated from "extraction, beneficiation, and processing of ores and minerals" from regulation as hazardous waste under RCRA Subtitle C. The Bevill Amendment also required EPA to conduct studies of these wastes and to determine whether to regulate them as hazardous wastes under RCRA Subtitle C. In 1980, EPA revised its regulations to exclude these wastes from Subtitle C regulation, but also interpreted the mining waste exclusion to apply to solid waste from the "exploration, mining, milling, smelting and refining of ores and minerals." Based on its broad interpretation of the Bevill Amendment, EPA suspended its Subtitle C listing of six hazardous smelter wastes. In 1985, EPA, under a court order, issued a proposed reinterpretation of the Bevill Amendment's mining waste exclusion. EPA proposed to narrow the scope of the exclusion to certain high-volume, low-hazard wastes and to relist the six smelting wastes under Subtitle C. A year later, EPA withdrew its proposal based on difficulties in applying the high-volume, low-hazard standard. The court first holds that petitioners' challenge is timely under RCRA §7006(a)(1). This is not a back-door challenge to EPA's 1980 interpretation of the Bevill Amendment, but a timely challenge to EPA's 1986 withdrawal of its 1985 proposed reinterpretation. EPA's 1986 withdrawal reaffirmed the 1980 interpretation by default and effectively renewed the statutory review period.

The court holds that EPA's withdrawal of its proposed reinterpretation of the Bevill Amendment was arbitrary and capricious because it left the six hazardous smelter wastes unlisted and reaffirmed an overly broad interpretation of the amendment. The structure of the amendment suggests that Congress intended the exclusion to apply to wastes generated in large volumes. The legislative history indicates that Congress intended the mining waste exclusion to apply only to high-volume, low-hazard "special wastes." EPA's failure to quantify the parameters of the high-volume, low-hazard standard in its 1985 proposal does not justify its decision to withdraw the proposal to list the six hazardous smelter wastes, which clearly would not qualify as special wastes under any acceptable definition. EPA's decision to withdraw its proposed reinterpretation in its entirety without seeking an extension from the district court to refine the definition was arbitrary and capricious. The court declines to review EPA's exemption from Subtitle C regulation of ash from the burning of hazardous waste in smelter furnaces. The status of this ash is not directly addressed in EPA's 1985 proposed reinterpretation or its 1986 withdrawal, the issue is the subject of an ongoing rulemaking, and is subject to judicial review in another case. The court orders EPA to relist the six hazardous smelting wastes and to determine the applicability of the Bevill Amendment to large-volume processing wastes.

[A companion case is published at 18 ELR 21178.]

Counsel for Petitioners
Robert V. Percival
Environmental Defense Fund, Inc.
1616 P St. NW, Washington DC 20036
(202) 387-3500

David R. Case
Hazardous Waste Treatment Council
1440 New York Ave. NW, Washington DC 20005
(202) 783-0870

Counsel for Respondents
Roger J. Marzulla, Scott A. Schachter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2455

Margaret B. Silver
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7706

Counsel for Intervenors
John N. Hanson, Donald J. Patterson Jr., Edward M. Green, Roderick T. Dwyer
American Mining Congress
1920 N St. NW, Suite300, Washington DC 20036
(202) 861-2800

Before: MIKVA and BUCKLEY, Circuit Judges, and OBERDORFER[*], District Judge.