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Dithiocarbamate Task Force v. EPA

ELR Citation: 27 ELR 20224
Nos. 95-1249 et al., 98 F.3d 1394/(D.C. Cir., 11/01/1996)

The court holds that the U.S. Environmental Protection Agency's (EPA's) listing of certain carbamate compounds and waste streams generated by carbamate-based production processes as hazardous wastes under the Resource Conservation and Recovery Act (RCRA) is arbitrary and capricious. Under the hazardous waste listing process at issue EPA must add chemicals to Appendix VIII of 40 C.F.R. part 261 only if the chemicals have been shown in scientific studies to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms. In the second step of the listing process, EPA must consider 10 factors in concluding that the waste is capable of posing a substantial present or potential hazard to human health or the environment when properly treated, stored, transported, or disposed of. In its rulemaking EPA listed wastes generated by the manufacturing process as K wastes. Chemical products or manufacturing chemical intermediates that are hazardous if discarded or intended to be discarded, EPA listed as P or U wastes, with the P designation reserved for acute hazardous wastes of this type. In reviewing EPA's listing of several U wastes, the court first holds that EPA's addition of items to Appendix VIII and its consideration of the 10 chemical factors in one rulemaking rather than two is proper. The petitioning carbamate manufacturer's association and carbamate manufacturers identify no language in 40 C.F.R. §261.11(a)(3) that suggests any requirement of sequential listing. Nor do they identify any way in which EPA's consolidated process might jeopardize their rights or increase the risk of error. The court also upholds EPA's consideration of harm to aquatic organisms or environments, rather than mammals or other land-based creatures in making Appendix VIII listings or actual hazardous waste listings. The court then holds that in making the determination necessary in the second step of a hazardous waste listing EPA must consider all 10 enumerated factors. EPA's theory that §261.11(a)(3) does not require consideration of the 10 factors defies the language of the rule. Moreover, the structure of 40 C.F.R. §261.11(a), which requires that substances exceeding toxic criteria listed at 40 C.F.R. §261.11(a)(2) be listed as hazardous, would be undercut if EPA could list substances exhibiting toxicity below the §261.11(a)(2) criteria without examining the 10 factors. The court next holds that EPA's listing of certain U wastes is arbitrary and capricious. EPA's consideration of the mismanagement factor, which seemed to amount to a statement that accidents will happen, interacted and aggravated its meager discussion of non-RCRA regulatory controls. The court next turns to EPA's listing of certain K wastes. The court holds that EPA's listing of K161 wastes, solid wastes from dithiocarbamate production, was not arbitrary and capricious. EPA's reliance on a 60-day study rather than a four-day study in considering the bioaccumulation factor provided no basis to set aside EPA's judgment, because petitioners failed to show that EPA had committed itself to a four-day study or that use of a 60-day study was plainly inappropriate for some scientific reason. Vague responses that EPA gave petitioners were not arbitrary and capricious without more evidence from the petitioners. The court vacates EPA's listing of K160 wastes, solids from the production of thiocarbamate wastes, because EPA failed to identify a plausible mismanagement scenario. The court also vacates EPA's inclusion of a manufacturer's carbamate product in EPA's listing of K156, K157, and K158 wastes. The manufacturer demonstrated that its product is different enough from other carbamates that it cannot be classified with them, absent more information from EPA. Last, the court rejects petitioner's Paperwork Reduction Act claim because an agency's failure to abide by the requirements of the Act does not prevent the promulgation of a rule, only its enforcement.

Counsel for Petitioner
Bethami Auerbach
Weinberg, Bergeson & Neuman
1300 I St. NW, Ste. 1000, Washington DC 20005
(202) 962-8585

Counsel for Respondents
Alan J. Birnbaum
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: EDWARDS, Chief Judge, WILLIAMS, and RANDOLPH, Circuit Judges.