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Edison Elec. Inst. v. EPA

Citation: 23 ELR 21173
No. Nos. 89-1320 et al., 2 F.3d 438/37 ERC 1385/(D.C. Cir., 08/06/1993)

The court holds that the U.S. Environmental Protection Agency (EPA or the Agency) failed to justify application of its toxicity characteristic rule to mineral processing and electric utility wastes, and remands portions of the rule to the Agency for further proceedings. In the Resource Conservation and Recovery Act (RCRA), Congress directed EPA to identify hazardous wastes by either identifying certain characteristics that would render a solid waste hazardous, or listing specific solid wastes that are, per se, hazardous. One of the four characteristics set out in EPA's regulations for the purpose of identifying hazardous solid wastes is its toxicity. EPA promulgated a final rule revising the toxicity characteristic. This toxicity characteristic rule provided a toxicity characteristic leaching procedure (TCLP) for testing a solid waste's toxicity. The rule is based on a hypothetical scenario in which the co-disposal of toxic wastes is mismanaged at a municipal landfill.

The court first holds that although EPA's adoption of a generic mismanagement scenario for the application of the toxicity characteristic rule should be upheld, EPA failed to demonstrate any rational relationship between the rule and mineral wastes to justify application of the rule to those wastes. The court holds that EPA's adoption of the generic mismanagement scenario should be upheld because it constitutes a reasonable construction of RCRA. Nothing in RCRA's mandate of a more accurate toxicity characteristic dictates a management-based approach. EPA reasonably responded to Congress' call for improved accuracy by changing the TCLP to include two leaching fluids and by eliminating an exception to the rule. Moreover, the choices the Agency made in adopting a generic municipal solid waste landfill mismanagement scenario involving co-disposal represent a reasonable interpretation of RCRA. The court holds, however, that EPA failed to demonstrate any rational relationship between the TCLP and mineral wastes to justify application of the toxicity test to those wastes. The Agency must provide at least some factual support for its conclusion that the mismanagement scenario it chooses is plausible. EPA's justification for applying it to mineral wastes consists of speculative factual assertions, and there is no evidence on the record that mineral wastes have ever been exposed to conditions similar to those simulated by the TCLP. There is no evidence or explanation to justify a conclusion that mineral wastes ever come into contact with any form of acidic leaching medium. Therefore, the court remands the rule to allow the Agency to provide a fuller and more reasoned explanation for its decision to apply the TCLP to mineral wastes.

The court upholds EPA's decision not to account for biodegradation as an attenuating mechanism in establishing the regulatory level of chloroform. Chloroform is a constituent for determining whether a solid waste should be regulated under RCRA subtitle C's toxicity characteristic. The court holds that, based on the record evidence available at the time of the decision, EPA reasonably responded to the congressional call for improved accuracy, such that the Agency did not act in an arbitrary or capricious manner by deciding not to account for biodegradation as an attenuating mechanism in establishing the regulatory level for chloroform. The court holds that EPA's rejection of petitioners' data submitted during the rulemaking procedure was warranted, given deficiencies in the data based on a failure to account for pH and temperature variations in different surface environments throughout the United States. The court also holds that EPA adequately considered each of the alternatives that petitioners raised, and, thus, did not act in an arbitrary or capricious manner by failing to adopt one of the suggested alternatives.

The court upholds EPA's promulgation of the TCLP in relation to metallic substances, such as lead and other inorganic constituents. The Agency gave adequate public notice of the character and scope of the TCLP, and EPA's explanation for its limited retention of the extraction procedure, the original protocol for determining the toxicity characteristic of solid wastes, appears reasonable. Moreover, EPA's decision to adopt a more aggressive leaching procedure is not inconsistent with the Agency's congressional mandate.

The court upholds the Agency's decision to defer application of the toxicity characteristic under RCRA Subtitle C to certain petroleum-contaminated waste that originates in underground storage tanks (USTs). EPA's approach, to defer regulation of the UST's waste under Subchapter C on the ground that such waste is already regulated under Subchapter I of RCRA, is a permissible construction of the statute.

Counsel for Petitioners
David R. Case
Hazardous Waste Treatment Council
1440 New York Ave. NW, Ste. 310, Washington DC 20005
(202) 783-0870

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

Before: MIKVA, Chief Judge, SILBERMAN* and D. H. GINSBURG, Circuit Judges.