Environmental Technology Council v. Browner

Nos. 94-2119; -2346 (D.D.C. March 8, 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

[26 ELR 21126]

Hogan, J.:

Memorandum Opinion

Pending before the court is a Motion for Entry of Proposed Consent Decree in these two consolidated cases. Also pending before the court is the intervenors' Opposition to Entry of Consent Decree. [26 ELR 21127] After carefully considering the parties' filings and the arguments of counsel at a hearing held on March 3, 1995, the court finds that the proposed consent decree is generally fair, reasonable, consistent with the public interest, and in furtherance of the statutory objectives. However, because the court has concerns that paragraph 3 of the proposed consent decree may not be consistent with the public interest, it will refrain from approving the proposed consent decree at this time. Instead, the court will grant the parties an opportunity to submit a revised proposed consent decree that satisfies the court's concerns.

I. Background

The dispute here centers around two regulations promulgated by the U.S. Environmental Protection Agency ("EPA"), the "mixture rule," and the "derived-from rule." These rules were issued pursuant to the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6921 et seq. The mixture rule states that a solid waste is a hazardous waste if it contains a mixture of solid and hazardous wastes. 40 C.F.R. § 261.3(a)(2)(iv). The derived-from rule states that solid wastes generated from the treatment, storage, or disposal of hazardous wastes are themselves hazardous wastes. 40 C.F.R. § 261.3(c)(2)(i).

These rules were promulgated in 1980 but were vacated by the United States Court of Appeals for the District of Columbia Circuit in 1991 in Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741 [22 ELR 20305] (D.C. Cir. 1991). The court of appeals vacated the rules because they were promulgated without adequate notice and comment. Id. at 752. Recognizing the impact of its decision, the court of appeals suggested that the EPA may want to consider reenacting the rules pending full notice and comment. Id. The EPA did reinstate the regulations on an interim basis in 1992 and solicited comments. The interim regulations contained a sunset provision so that they would remain in effect only until April 28, 1993. 57 Fed. Reg. 7628 (Mar. 3, 1992).

The EPA proposed a replacement rule, the Hazardous Waste Identification Rule ("HWIR"), in May of 1992. 57 Fed. Reg. 21450 (May 20, 1992). This proposal met with numerous objections from a wide variety of sources, including over 40 states.

In October of 1992, Congress passed a law ("the Chafee Amendment") directing that these regulations remain in place until the EPA revised them in response to the comments being solicited. Pub. L. No. 102-389, 106 Stat. 1571, 1602-03 (1992). The Chafee Amendment required the EPA to issue regulations by October, 1, 1994, but specifically prohibited the issuance of regulations before October 1, 1993. The Chafee Amendment permitted this deadline to be enforced under § 7002 of the Solid Waste Disposal Act, 42 U.S.C. § 6972.¹

Shortly after the Chafee Amendment was passed, the EPA published notices removing the earlier April 1993 sunset provision and withdrawing the May 1992 proposal that had been the source of many objections. 57 Fed. Reg. 49278, 49280 (Oct. 30, 1993).

In early 1993, the EPA convened a HWIR Roundtable involving EPA representatives, the states, environmental groups, and industry representatives. Despite numerous meetings, the Roundtable was unable to produce a consensus on a new proposed rule. The Roundtable's discussions ended on September 26, 1994. The EPA did not issue a revised regulation by the October 1, 1994, deadline that had been established by the Chafee Amendment.

Shortly after the October 1, 1994, deadline passed, three separate lawsuits were filed in which the plaintiffs sought court orders directing the EPA to promulgate revised mixture and derived-from rules: Environmental Technology Council v. Browner et al., Civil Action No. 94-2119 ("the ETC case"), Chemical Manufacturers Association et al. v. Browner, Civil Action No. 94-2124 ("the CMA case"), and Edison Electric Institute et al. v. Browner, Civil Action No. 94-2346 ("the EEI case"). On November 2, 1994, the plaintiffs in the EEI case filed a motion to consolidate all three cases. On November 14, the EEI plaintiffs withdrew that motion and filed a joint motion to consolidate only the EEI and ETC cases. The EEI and ETC plaintiffs then filed a joint motion with EPA seeking entry of a proposed consent decree. In the proposed consent decree, the parties agree upon a schedule by which the EPA will issue notice of proposed revisions by August 15, 1995, and will issue its final rules by December 15, 1996.

The plaintiffs in the CMA case were not parties to the proposed consent decree. They filed a motion for summary judgment on November 3, 1994. In response, the EPA filed a motion seeking to suspend briefing of the summary judgment motion and a motion to dismiss the CMA case.

In an Order signed on December 20, 1994, the court consolidated the ETC and EEI cases. However, the court allowed the CMA plaintiffs to intervene in the consolidated matter so that the CMA intervenors could challenge the fairness of the proposed consent decree. The court also stayed ruling on the dispositive motions in the CMA case pending the resolution of the motion for entry of the consent decree.

II. Discussion

There is a strong policy favoring the voluntary settlement of civil matters. Citizens for a Better Env't v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983), cert. denied, 467 U.S. 1219 (1984). In examining a proposed consent decree, the court's duty is to determine whether the settlement is consistent with the statute that the consent judgment is attempting to enforce and to determine whether the agreement fairly and reasonably resolves the controversy in a manner consistent with the public interest. Id. at 1128; see also United States v. Oregon, 913 F.2d 576, 580 [20 ELR 21232] (9th Cir. 1990) (before approving consent decree, district court must be satisfied that decree is fundamentally fair, adequate, reasonable, and in conformity with applicable laws), cert. denied, 501 U.S. 1250 (1991). It is with this standard in mind that the court will review the proposed consent decree and the objections of the CMA intervenors.

In their written opposition to the proposed consent decree, the CMA intervenors present two arguments: (1) paragraph 10 of the proposed consent decree improperly allows the EPA to avoid the Chafee Amendment's directive that the agency promulgate revisions of its requirements relating to contaminated environmental media (such as soil or groundwater); and (2) the rulemaking schedule in the proposed consent decree gives the EPA more time than it needs to issue the new rules. At oral argument, the CMA intervenors also argued that the proposed consent decree is flawed because it provides inadequate enforcement mechanisms and gives the settling parties the power to stipulate to extensions of time without the approval of the court. The court will address each of these arguments in turn.

A. Does the Consent Decree Comply With EPA's Duty Under the Chafee Amendment?

The first issue raised by the CMA intervenors relates to the scope of the EPA's duty under the Chafee Amendment. The CMA intervenors disagree with the other parties' interpretation of the Chafee Amendment's requirements. They oppose the consent decree because they believe that it constitutes an explicit repudiation of the EPA's duty under the Chafee Amendment.

Paragraph 10 of the consent decree states that:

The nondiscretionary duty imposed by the 1992 Act extends only to revisions to the mixture and derived-from rules. Therefore, nothing in that Act or in this Decree obligates the EPA (a) to undertake any action to establish criteria or regulations for identifying or listing as hazardous additional wastes that currently are not regulated under Subtitle C of RCRA, or (b) to revise or otherwise modify its regulatory requirements applicable to the management of environmental media — soils and groundwater — regulated under Subtitle C of RCRA. However, nothing in this Decree shall preclude the EPA from undertaking such actions.

Proposed Consent Decree P. 10.

The CMA intervenors argue that the Chafee Amendment requires the EPA to revise its requirements relating to contaminated media. Because the proposed consent decree specifically exempts the EPA from this statutory mandate, the CMA intervenors argue that the decree [26 ELR 21128] must be rejected. The EPA and the ETC and EEI plaintiffs take the position that the plain language of the Chafee Amendment only requires the EPA to revise the mixture and derived-from rules and does not require any revisions of contaminated media requirements. Thus, they reason that the proposed consent decree in no way violates the Chafee Amendment. After carefully reviewing this issue, the court finds that the language in the proposed consent decree is consistent with [the] Chafee Amendment.

The Chafee Amendment, in relevant part, says that the "EPA shall promulgate revisions to paragraphs (a)(2)(iv) and (c)(2)(i) of 40 C.F.R. 261.3." Pub. L. 102-389, 106 Stat. at 1602. Thus, the language clearly directs the EPA to revise two paragraphs of its regulations. Paragraph (a)(2)(iv) is the mixture rule, 40 C.F.R. § 261.3(a)(2)(iv). Paragraph (c)(2)(i) is the derived-from rule, 40 C.F.R. § 261.3(c)(2)(1). Neither rule makes any reference to contaminated media. Thus, the plain language of the Chafee Amendment provides no support for the CMA intervenors' position.

Despite the plain language of the Chafee Amendment, the CMA intervenors argue that the background and legislative history of the Chafee Amendment indicate that the EPA should revise the contaminated media requirements. First, they point out that when the EPA issued the proposed HWIR, it addressed both industrial process wastes and contaminated media. Next, the CMA intervenors note that some comments of critics of the HWIR reprinted in the Congressional Record specifically referred to the contaminated media issue. The CMA intervenors further argue that the EPA used to take the position that the Chafee Amendment required regulatory changes to address contaminated media. For example, when the Chafee Amendment delayed the mixture and derived-from rules, the EPA delayed the entire rulemaking (including the contaminated media requirements). Additionally, they note that the HWIR Roundtable included a subcommittee addressing contaminated media. Finally, the CMA intervenors assert that the EPA has twice suggested in the Federal Register that the mixture and derived-from rules address contaminated media. See 57 Fed. Reg. 37225 (Aug. 18, 1992) (stating that "contained in" principle had "served as an interpretive gloss on the existing mixture and derived-from rules");² 57 Fed. Reg. 983 (Jan. 9, 1992) (referring to the EPA's interpretation of mixture and derived-from rules that environmental media contaminated with hazardous wastes remain subject to regulation as hazardous wastes). From these factors, the CMA intervenors then reason that the Chafee Amendment's reference to "revisions" to the mixture and derived-from rules actually requires a revision of the EPA's contaminated media requirements.

The court finds the CMA intervenors' arguments unpersuasive. As noted supra, the language of the Chafee Amendment specifically refers to the mixture and derived-from rules, not to any other rules, requirements, or regulatory principles. Since both rules apply only to solid wastes and soil and groundwater are not solid wastes, the rules by their terms do not apply to contaminated environmental media. The court of appeals for this circuit has specifically acknowledged this point by stating that "[n]either the mixture nor the derived-from rule is by its terms directly applicable to contaminated soil or groundwater." Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 869 F.2d 1526, 1538 [19 ELR 20641] (D.C. Cir. 1989).³

None of the other arguments raised by the CMA intervenors suggest that the court should reject the proposed consent decree's adoption of the plain language of the Chafee Amendment. Although the CMA intervenors assert that contaminated media are subject to RCRA requirements because of the mixture and derived-from rules, the EPA has persuasively argued that contaminated media are subject to RCRA requirements because of the contained-in principle, which is drawn from 40 C.F.R. §§ 261.3(c)(1) and 261.3(d)(2).⁴ The EPA has also indicated that in arguing the Chemical Waste Management case before the court of appeals, it took an identical position in its briefs. See EPA's Reply Ex. H.

The two instances where the EPA appeared to take a different position in the Federal Register do not provide a sufficient basis to reject the proposed consent decree. Although this language in the Federal Register arguably suggests that the mixture and derived-from rules provide the basis for regulating contaminated environmental media as hazardous wastes, this language arose in contexts where the source of the contained-in principle was not at issue. Even if this language in the Federal Register may be inconsistent with the EPA's current position, the court is persuaded that the EPA's current interpretation of 40 C.F.R. § 261.3 was not created out of whole cloth. Rather, it is consistent with interpretations that have been expressed by the agency as far back as 1986. See EPA's Reply Exs. D-G. Since an agency's interpretation of its own regulations generally should be accepted unless it is plainly wrong, the court cannot find that the EPA's interpretation of the mixture and derived-from rules should be rejected here. Chemical Waste Management, 869 F.2d at 1539. When the agency's interpretation here is considered in light of the plain language of the Chafee Amendment, the court cannot find that the language of paragraph 10 of the proposed consent decree violates the Chafee Amendment.

B. Is the Consent Decree's Proposed Schedule Unreasonable and Contrary to the Chafee Amendment?

The CMA intervenors next argue that the proposed rulemaking schedule contained in the proposed consent decree is unreasonable and contrary to the objectives of the Chafee Amendment. They point out that the proposed consent decree extends the deadline for issuing final regulations nearly two years past the statutory deadline created by the Chafee Amendment. Additionally, they argue that because the EPA has already done a great deal of the work necessary to promulgate the revised mixture and derived-from rules, it could promulgate the regulations in a more timely fashion. The CMA intervenors also provide a declaration from a former EPA Administrator, Don R. Clay, who states that the EPA could promulgate a final rule by April 1, 1996. CMA's Opp'n Ex. A, P. 14. Thus, the CMA intervenors assert that this court should reject the proposed consent decree because the EPA could issue its regulations slightly more than eight months earlier than the proposed date of December 15, 1996.

The court is not persuaded that the schedule contained in the proposed consent decree is unreasonable or unfair. The EPA has provided a declaration from an EPA Administrator, Elliott P. Laws, stating that the dates in the proposed consent decree are the most expeditious dates by which the EPA practically can be expected to issue the revised rules. EPA's Reply Ex. B, P. 10. The declaration notes that the EPA is considering the development of rules that will define the circumstances when wastes will no longer be considered hazardous. Id. P. 2. This rulemaking thus prevents many highly technical issues and will undoubtedly produce large numbers of comments. Id. PP. 3-8.

Despite the CMA intervenors' assertion that the EPA can issue these regulations in a more timely fashion and that time is of the essence, the court is not persuaded that the schedule contained in the proposed consent decree is unreasonable. The current regulations have existed since 1980. The CMA intervenors and the public will not be substantially prejudiced by an additional delay of a few months. In fact, under the timetable in the proposed consent decree, [26 ELR 21129] the EPA will produce proposed rules by August 15, 1995, which is only six months away. Given the technical nature of the rules in question and the extensive comments that the EPA will likely receive, it is not unreasonable for the EPA to issue its final regulations by December 15, 1996.

C. Is the Consent Decree Contrary to the Public Interest Because It Lacks Enforcement Mechanisms?

At oral argument on March 3, 1995, counsel for the CMA intervenors asserted that the proposed consent decree should not be approved because it lacks enforcement mechanisms. Specifically, the CMA intervenors noted that the court has very limited power to ensure that the EPA complies with the schedule contained in the proposed consent decree. In fact, the proposed consent decree allows the EPA and the settling plaintiffs to stipulate to extensions of the deadlines for issuing the proposed and final rules without approval of the court and without showing good cause. Although this objection was not raised in the CMA intervenors' papers and the settling parties did not have an opportunity to respond in writing, the court finds that the objection is a valid one.

The CMA intervenors are correct in suggesting that the proposed consent decree would allow the EPA and the settling plaintiffs to extend the rulemaking schedule with ease. Paragraph 3 of the proposed consent decree states: "The parties may extend the deadline in the schedule established under Paragraphs 1 and 2 or otherwise modify this Decree by written stipulation executed by counsel for the parties and filed with the court." Proposed Consent Decree, P. 3.

This paragraph clearly allows the settling parties to agree to extend the dates for issuing proposed or final rules without the approval of the court. Because there is no provision for court approval and no good cause requirement, the parties could arguably extend deadlines for any reason or for no reason at all. Even if the parties agree to numerous extensions of the deadlines set forth in the proposed consent decree, the proposed consent decree does not provide the CMA intervenors with any means to challenge the extensions of the deadlines and does not allow the court to prevent an unreasonable extension.⁵

The EPA and the settling plaintiffs asserted at oral argument that the proposed consent decree was not unenforceable because it allows the CMA intervenors to object to stipulations, but the court is not persuaded by these representations. Although the EPA and the settling plaintiffs argued that the CMA intervenors will be free to file oppositions to stipulated extensions of time, it is unclear what good such oppositions would do because the proposed consent decree does not provide the court with the power to review stipulations or to deny an extension to which the settling parties have stipulated. Thus, the court is not satisfied that the proposed consent decree provides the CMA intervenors with an adequate opportunity to challenge any extensions of the rulemaking schedule.

The EPA and the settling plaintiffs additionally argue that the schedule in the proposed consent decree is not unenforceable because the settling plaintiffs will never agree to an unreasonable extension of time. While the settling plaintiffs may not ordinarily consent to an extension that they do not believe is justified, the court harbors serious doubts that it is consistent with the public interest to leave the determination of good cause for an extension in the hands of the settling plaintiffs alone. The public interest in the promulgation of timely regulations appears to require the court to carefully scrutinize any additional extensions of the rulemaking schedule when the EPA is already proposing to issue its final rule more than two years after the deadline imposed by Congress.⁶ The settling plaintiffs have other private interests that may affect their willingness to consent to an extension of a deadline. Absent an impartial determination as to the reasonableness of any extensions of time, the public interest is left unprotected. Accordingly, the court cannot find that paragraph 3 of the proposed consent decree is fair, reasonable, consistent with the public interest, and consistent with the spirit of the Chafee Amendment. The court therefore cannot approve the proposed consent decree in its current form.

III. Conclusion

Despite the objections of the CMA intervenors, the court finds that most of the provisions of the proposed consent decree are fair, reasonable, consistent with the Chafee Amendment, and consistent with the public interest. However, the court is concerned about the terms of paragraph 3 of the proposed consent decree. Although the court cannot approve the consent decree in its current form, the court will allow the EPA and the settling plaintiffs to submit a revised proposed consent decree that addresses the court's concerns about the enforceability of the proposed consent decree's deadlines. If the parties submit a proposed consent decree that addresses the court's concerns about paragraph 3 in an adequate fashion, the court will approve the revised proposed consent decree.

1. The Chafee Amendment states:

Funds appropriated or transferred to EPA may be used to develop revisions to 40 C.F.R. 261.3, as reissued on March 3, 1992, published at 57 Fed. Reg. 7628 et seq. EPA shall promulgate revisions to paragraphs (a)(2)(iv) and (c)(2)(i) of 40 C.F.R. 261.3, as reissued on March 3, 1992, by October 1, 1994, but any revisions to such paragraphs shall not be promulgated or become effective prior to October 1, 1993. Notwithstanding paragraph (e) of 40 C.F.R. 261.3, as reissued on March 3, 1992, paragraphs (a)(2)(iv) and (c)(2)(i) of such regulations shall not be terminated or withdrawn until revisions are promulgated and become effective in accordance with the proceeding sentence. The deadline of October 1, 1994, shall be enforceable under section 7002 of the Solid Waste Disposal Act.

Pub. L. No. 102-389 at 32-33, 106 Stat. 1571, 1602-03 (1992).

2. The "contained-in" principle states that when a hazardous waste is mixed with an environmental medium, the mixture is managed as a hazardous waste. The application of this principle to contaminated environmental media means that soil or groundwater that is mixed with a hazardous waste should be treated as a hazardous waste.

3. In Chemical Waste Management, a group of industry representatives challenged the EPA's position that environmental media that are contaminated with hazardous wastes should be themselves considered hazardous wastes. The EPA argued that the action was untimely because the 1980 regulations clearly established that contaminated media are hazardous wastes. The court of appeals rejected this position because neither the derived-from nor the mixture rule was directly applicable to contaminated media. Id. at 1538. However, the court upheld the regulations because it found that the EPA's interpretation of the 1980 regulations was reasonable. Id. at 1539-40. The court looked at several factors in reaching this conclusion, including the consistency of the EPA's interpretationwith the derived-from and mixture rules, but the court did not rely solely upon any one factor. Id. at 1540. Thus, the court did not specifically hold that the contaminated media were covered by the mixture and derived-from rules; it simply found that the agency's interpretation was reasonable and consistent with the general regulatory framework at issue. Id.

4. The EPA has provided several exhibits supporting its position that contaminated environmental media such as groundwater and soil are not considered hazardous wastes pursuant to the mixture or derived-from rules. See EPA's Reply, Exs. D-G. Instead, the EPA asserts that contaminated environmental media are hazardous wastes because they "contain" hazardous wastes. A separate rule, § 261.3(d)(2), states that a substance that contains a hazardous waste can be considered a hazardous waste itself. 40 C.F.R. § 261.3(d)(2). Another rule, § 261.3(d)(2), states that a hazardous waste will remain a hazardous waste. 40 C.F.R. § 261.3(d)(2). The EPA argues that these two rules provide the source of the contained-in principle. According to the EPA, the contained-in principle is the reason that it treats contaminated environmental media as hazardous wastes.

5. The court recognizes that the CMA intervenors were not part of this case at the time the proposed decree was drafted. However, all parties knew about the separate CMA case at the time that the proposed consent decree was submitted to the court.

6. The court notes that in December of 1994, Judge Lamberth approved a consent decree involving, inter alia, the EPA and the EEI, which provided that provisions of the decree "shall be modified for good cause shown." Environmental Defense Fund v. Browner et al., Civil Action No. 89-0598, Consent Decree, P. 17 (December 9, 1994). The consent decree also stated that modifications of dates required written consent of the plaintiff and the EPA and subsequent approval of the court. Id. at P 18. These procedures appear to be better tailored toward protecting the public interest in the pronaulgation of timely regulations than the procedures in paragraph 3 of the proposed consent decree in the instant case.