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Columbia Falls Aluminum Co. v. EPA

ELR Citation: 28 ELR 21106
Nos. 96-1234, 139 F.3d 914/46 ERC 1353/(D.C. Cir., 04/03/1998)

The court holds that the U.S. Environmental Protection Agency's (EPA's) use of the toxicity characteristic leaching procedure (TCLP) to measure compliance with the Resource Conservation and Recovery Act (RCRA) treatment standard for spent potliner is arbitrary and capricious. Spent potliner is a byproduct of primary aluminum reduction. The court first holds that the aluminum manufacturing petitioners' withdrawal of requests for agency rule reconsideration cured the jurisdictional defect caused by the reconsideration requests. The court also holds that the administrative record for the purposes of judicial review includes evidence submitted after the first spent potliner rule was promulgated. EPA reopened the treatment standard at two distincttimes after the first rulemaking, and once an agency reopens an issue, a new review period is triggered.

The court then holds that EPA's treatment standard is arbitrary and capricious. EPA admitted that the TCLP was not an accurate predictor of the mobility of toxic constituents in leachate after disposal. Also, EPA offered no defense of its continued reliance on a test it knew to be inaccurate. All available evidence indicates that the treated spent potliner is disposed of in conditions quite different from those that the TCLP simulates. Therefore, the court vacates and remands the treatment standard itself because the concentration limits for fluoride and metals, including arsenic, are expressed only in terms of the TCLP. The court also vacates EPA's prohibition on land disposal of spent potliner. RCRA §3004(m) requires the treatment standard and the prohibition on land disposal to be implemented on the same day. Furthermore, pragmatic considerations strongly suggest that the treatment standard and land disposal restriction are intended to work together. And vacating the treatment standard for spent potliner without vacating the prohibition on land disposal might force aluminum manufacturers to cease production.

Counsel for Petitioners
Lester Sotsky
Arnold & Porter
Thurman Arnold Bldg.
555 12th St. NW, Washington DC 20004
(202) 942-5000

Counsel for Respondents
Steven E. Silverman
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before Ginsburg and Henderson, JJ.