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Environmental Technology Council v. Browner

ELR Citation: 26 ELR 21126
Nos. 94-2119, -2346, 41 ERC 1218/(D.D.C., 03/08/1995)

The court refuses to approve a proposed consent decree requiring the U.S. Environmental Protection Agency (EPA) to issue a notice of proposed revisions to its hazardous waste identification rule by August 15, 1995, and to issue its final rules by December 15, 1996. The court first holds that a statement in the decree exempting EPA from revising its contaminated-media requirements does not violate the Chafee Amendment. The Chafee Amendment's plain language specifically refers only to the mixture and derived-from rules. Since both rules apply only to solid waste, and soil and groundwater are not solid wastes, the rules by their terms do not apply to contaminated environmental media. The court upholds EPA's interpretation that contaminated media are subject to Resource Conservation and Recovery Act requirements under the contained-in principle, and not under the mixture and derived-from rules, because that position is consistent with interpretations that the Agency has expressed as far back as 1986. The court next holds that given the technical nature of the rules and the extensive comments that EPA will likely receive, the schedule contained in the proposed consent decree is not unreasonable or unfair despite the chemical industry intervenors' assertion that EPA can issue the regulations in a more timely fashion and that time is of the essence. The intervenors will not be substantially prejudiced by an additional delay of a few months. But the court next holds that the paragraph of the decree regarding deadline extensions is not fair, reasonable, consistent with the public interest, or consistent with the spirit of the Chafee Amendment, because it would allow EPA and the settling plaintiffs to extend the rulemaking schedule without good cause and without court approval. Thus, the parties could arguably extend deadlines for any reason or no reason at all. Also, although the decree allows the intervenors to object to proposed stipulated extensions of time, it does not provide them with an adequate opportunity to challenge any extensions of the rulemaking schedule. Absent an impartial determination as to the reasonableness of any extensions of time, the public interest is left unprotected. The court concludes that although it cannot approve the proposed consent decree in its current form, it will allow EPA and the settling plaintiffs to submit a revised proposed consent decree that addresses the court's concerns about the enforceability of the decree's deadlines.

Counsel for Plaintiff
David R. Case
Hazardous Waste Treatment Council
915 15th St. NW, Washington DC 20005
(202) 783-0870

Counsel for Defendants
Eileen T. McDonough
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000