Opposition Brief — American Mining Congress v. Environmental Defense Fund

OcTOBER TERM, 1988

AMERICAN MINING CONGRESS, ET AL., PETITIONERS

V.

ENVIRONMENTAL DEFENSE FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

ScoTT A. SCHACHTER

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in reversing the

decision of the Environmental Protection Agency (EPA)

to withdraw its proposed reinterpretation of the mining

waste exclusion in Section 3001(b)(3)(A)(ii) of the

Resource Conservation and Recoyery Act, 42 U.S.C.

6921(b)(A)(ii).

2. Whether the court of appeals’ remedial order direct-

ing the EPA to remove six particular hazardous smelter

wastes from coverage under the mining waste exclusion

impermissibly usurped agency functions.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Chevron U.S.A. Inc. v. Natural Resources Defense Coun-

ie Ge Gia MNT CHEER ccc cccccccccccccesceces 9-10

Concerned Citizens of Adamstown v. EPA, Civ. No.

ee Geers FAG, Big TOGO ccc ccccccccccccccccs 5

Environmental Defense Fund v. EPA, 852 F.2d 1309

NT ae en ess cose dedeedeneb aed esses 6

Statutes and regulation:

Hazardous and Solid Waste Amendments of 1984, Pub.

Rig SL, EE og cccccccccccasseseceses 2

Resource Conservation and Recovery Act of 1976, Pub.

L. No. 94-580, 90 Stat. 2795, 42 U.S.C. 6901 ef seq.:

§ 3001-3011, 42 U.S.C. 6921-6931 (1982 & Supp.

Mette disk scivePhsaegsdehews snes 2

§ 3001, 42 U.S.C. 6921 (1982 & Supp. IV 1986) ..... 2

§ 3001(b)(3 Ail), 42 U.S.C. 6921(b)(3( Ail)... .. 2,4

§ 3001(b)(3)(C), 42 U.S.C. 6921(b,3V(C) ..... 2... 4,5,9

EE vnc cctecccesessesocénies 8

Dy Ge Wh eis GEES ccc cccccccccccccacccs 4,5

§ 8002(p), 42 U.S. 6982(p) ....................0.. 3-4, §

Solid Waste Disposal Act Amendments of 1980, Pub. L.

PS MD on csdcccccccsccsccecescocs

a eaesasion

Miscellaneous:

43 Fed. Reg. (1978):

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IV

Miscellaneous — Continued: Page

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45 Fed. Reg. (1980):

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ice eehcnt Ankenes shes dk ken eede sehen 4

hci bhksatandondbedenbeaaeeeeakeuenkes 4

46 Fed. Reg. (1981):

ED. ..decuhedhehesennsehenscbexeess 5

tele ietasekadacadecéees bukakeebewe 5

50 Fed. Reg. (1985):

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et ced kekn ke eeekenRihe bade nam eeee 6, 10

ED ccick ssobdacdseessdseetesonann 7

cnc 6 teks bbe nde es oe sataweaekebedas 7

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51 Fed. Reg. (1986):

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ties ins adedasuakeesdensaeen eens i

53 Fed. Reg. (1988):

i tseibe nas cecawéseenbeb eens 9,11

hs otc ciedkechdsadeandebaduade 8,9

i whos cn beaawedakdnateeieneees y

ED Nan Lie cusp eaeed od eawressienes 4

rE ee teks oni de eeaeebatauwaes 9

I ne ee ay deed dabndale nae 11

H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976) ........ 2

In the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-848

AMERICAN MINING CONGRESS, ET AL., PETITIONERS

v.

ENVIRONMENTAL DEFENSE FUND, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS.

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-31la)

is reported at 852 F.2d 1316. ys

JURISDICTION

The judgment of the court of appeals was entered on

July 29, 1988. Pet. App. la. Upon consideration of peti-

tions for rehearing, the judgment was amended and the

petitions were otherwise denied on August 23, 1988. Pet.

App. 32a-33a. The petition for a writ of certiorari was

filed on November 21, 1988. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

On October 9, 1986, the United States Environmental

Protection Agency (EPA) withdrew its proposed reinter-

pretation of the scope of the mining waste exclusion con-

(1)

2

tained in Section 3001(b)(3)(A\ii) of the Resource Conser-

vation and Recovery Act of 1976 (RCRA), 42 U.S.C.

6921(b)( 3 Ail). See 51 Fed. Reg. 36,233; Pet. App.

70a-73a.' EPA’s withdrawal of the proposed reinterpreta-

tion of the mining waste exclusion left certain hazardous

smelter wastes exempt from regulation as hazardous

wastes under RCRA. The court of appeals reversed EPA’s

decision for that reason and because it concluded that the

agency action reaffirmed an overbroad interpretation of

the scope of the mining waste exclusion. Pet. App.

26a-29a.

1. In 1976, Congress enacted Subtitle C of RCRA, 42

U.S.C. 6921-6931 (1982 & Supp. IV 1986). Congress’s aim

was to create a comprehensive “cradle to grave” regulatory

program to protect human health and the environment

from the risks associated with the improper handling,

storage, and disposal of hazardous waste. See H.R. Rep.

No. 1491, 94th Cong., 2d Sess. 3 (1976). To that end, Sec-

tion 3001 of RCRA, 42 U.S.C. 6921 (1982 & Supp. IV

1986), directs EPA to identify and list those solid wastes

which are hazardous and which therefore are subject to

regulation under Subtitle C.?

On December 18, 1978, EPA proposed comprehensive

regulations for the treatment, storage, and disposal of

' RCRA was enacted on October 21, 1976 (Pub. L. No. 94-580, 90

Stat. 2795) and amended in 1980 (Solid Waste Disposal Act Amend-

ments of 1980, Pub. L. No. 96-482, 94 Stat. 2334) and again in 1984

(Hazardous and Solid Waste Amendments of 1984, Pub. L. No.

98-616, 98 Stat. 3221).

? A solid waste may be a hazardous waste under Section 3001 either

because it has the characteristics of hazardous wastes or because it has

been specifically listed as such by EPA after a rulemaking proceeding.

See 40 C.F.R. Pt. 261.

3

hazardous wastes under Subtitle C of RCRA. 43 Fed. Reg.

58,957-58,959. The proposed regulations identified a class

of “special wastes” that were generated in large volumes,

were thought to pose less of a hazard than other hazardous

wastes, and were thought not to be amenable to the con-

trol techniques proposed for hazardous waste treatment,

storage, and disposal facilities. Jd. at 58,992; Pet. App.

46a-47a. EPA accordingly proposed that less stringent

regulatory requirements would apply to special wastes

than to other hazardous wastes. /bid. EPA identified

waste materials from the extraction, beneficiation, and

processing of ores and minerals (mining waste), as being

special wastes. 43 Fed. Reg. 59,016; Pet. App. 48a.

On May 19, 1980, EPA promulgated final hazardous

waste management regulations under Subtitle C. 45 Fed.

Reg. 33,066; see Pet. App. 49a-52a. The final regulations

did not recognize a “special waste” category. Consequent-

ly, hazardous mining waste was to be subject to the same

requirements as other hazardous wastes. 45 Fed. Reg.

33,084. Along with its final rule, EPA listed as hazardous

various waste streams generated from primary metal

smelters, including six that are specifically at issue

now—copper blowdown wastes, lead impoundment

solids, zinc wastewater sludges, aluminum potliners, emis-

sion control dust or sludge from the production of ferro-

chromium, and such dust or sludge from the production

of ferrochromium-silicon. Jd. at 33,124; id. at 47,832,

47,834 (July 16, 1980); Pet. App. 50a, 53a-54a. See Pet.

App. Sa.

On October 21, 1980, one month prior to the effective

date of EPA’s Subtitle C regulations (see 45 Fed. Reg.

33,066 (1980)), Congress enacted the Solid Waste Disposal

Act Amendments of 1980, Pub. L. No. 96-482, 94 Stat.

2334, which included what is known as the Bevill Amend-

ment. The Amendment added Section 8002(p), 42 U.S.C.

4

6982(p), which required EPA to complete and to submit to

Congress a detailed study on “solid waste from the extrac-

tion, beneficiation, and processing of ores and minerals,

including phosphate rock and overburden from the mining

of uranium ore”—hereafter referred to as mining waste.

That study was to be conducted in conjunction with a

related study required by Section 8002(f), 42 U.S.C.

6982(f), and both were to be completed by October 1983.

The Bevill Amendment also added Section 3001(b)(3)(C)

to RCRA, 42 U.S.C. 6921(b)(3)(C), which required EPA,

within six months after completing its mining waste

studies, either to promulgate Subtitle C regulations or to

determine that such regulations are unwarranted. Finally,

the Bevill Amendment added Section 3001(b)(3)(A)(ii) to

RCRA, 42 U.S.C. 6921(b)(3)(A)(ii), which prohibited

EPA from regulating such mining wastes and certain other

specified wastes under Subtitle C until EPA completed its

studies under Section 8002(f) and (p) and also pro-

mulgated regulations or decided not to regulate pursuant

to Section 3001(b)(3)(C). See Pet. App. 6a-7a.

On November 19, 1980, in response to the new legisla-

tion, EPA amended its hazardous waste regulations to in-

corporate, essentially verbatim, the mining waste exclu-

sion set forth in the Bevill Amendment. 45 Fed. Reg.

76,618; Pet. App. 55a. In the preamble to the amended

regulation, EPA stated that, as a “temporary accommoda-

tion” to the mining industry, it would interpret the exclu-

sion to cover “solid waste from the exploration, mining,

milling, smelting, and refining of ores and minerals” (45

Fed. Reg. 76,619)—that is, to cover processing wastes

from the smelting and refining of ores and minerals (id. at

76,618). In accord with that interpretation (the 1980 inter-

pretation), EPA also amended its regulations to suspend

the previous listing of the six waste streams associated with

5

metal smelting (three “temporarily”). 46 Fed. Reg.

4614-4615 (1981); id. at 27,473; Pet. App. 56a-59a. See

Pet. App. 8a.

2. In 1984, respondent Environmental Defense Fund

(EDF) and others brought suit challenging EPA’s failure

to complete the required mining waste studies or to make

the required determination regarding the issuance of

regulations for such waste. By that time, the statutory

deadlines for such action had passed. The plaintiffs also

contended that, for certain hazardous smelter wastes,

EPA was required either to determine that they are outside

the scope of the Bevill Amendment’s exclusion and hence

relist them or to include them within the mining waste

study. The district court, in agreement with the plaintiffs,

ordered EPA to complete the mining waste studies and

report to Congress by December 31, 1985, and to make the

regulatory determination no later than six months

thereafter. In addition, pursuant to EPA’s own statement

that it intended to reinterpret the mining waste exclusion

so that it would not cover certain processing smelter

wastes, the district court ordered EPA either to propose

such a reinterpretation or to study and report on such

wastes by specific dates. Concerned Citizens of

Adamstown v. EPA, Civ. No. 84-3041 (D.D.C. Aug. 21,

1985). See Pet. App. 9a-10a.

EPA met the court-ordered schedules for completing

the Section 8002(f) and (p) studies and the report to Con-

gress and for making the regulatory determination re-

quired by Section 3001(b)(3)(C). Thus, EPA submitted its

“Report to Congress on Wastes from the Extraction and

Beneficiation of Metallic Ores, Phosphate Rock,

Asbestos, Overburden from Uranium Mining, and Oil

Shale” on December 31, 1985, and six months later it

published its determination that regulation under Subtitle

C of the mining wastes covered by the report was not war-

6

ranted at that time. 51 Fed. Reg. 24,496 (1986). The report

to Congress and the regulatory determination covered ex-

traction and beneficiation of mining wastes; they did not

cover processing wastes.? See Pet. App. 12a-13a.

EPA addressed such wastes in the promised proceeding

regarding reinterpretation of the Bevill Amendment’s min-

ing waste exclusion. In late 1985, EPA proposed a reinter-

pretation (the 1985 reinterpretation) that would narrow

the scope of the Bevill Amendment exclusion as it applied

to processing wastes. 50 Fed. Reg. 40,292; Pet. App.

60a-69a. Upon reviewing the legislative history of the

Bevill Amendment, EPA concluded that the broad 1980

interpretation was incorrect because Congress did not in-

tend the mining waste exclusion to apply to all wastes from

smelting and refining, explaining that such a reading of

the term “processing” in the statutory exclusion had the ef-

fect of removing from Subtitle C regulation many ob-

viously hazardous wastes that are “generated many steps

beyond the initial extraction and beneficiation of ores and

minerals.” 50 Fed. Reg. 40,293; Pet. App. 10a-lla

Rather, EPA concluded, Congress intended “processing”

wastes to cover only the types of high volume, low hazard

wastes that EPA had deemed “special wastes” in its 1978

proposed regulations. Jbid. EPA identified only four such

wastes as covered under the new interpretation,‘ but it

solicited public comment on what additional processing

wastes, if any, should be included in the mining waste ex-

> EDF challenged EPA’s regulatory determination for extraction

and beneficiation mining wastes in the companion case below, En-

vironmental Defense Fund v. EPA, 852 F.2d 1309 (D.C. Cir. 1988).

The court of appeals upheld EPA’s decision not to regulate extraction

and beneficiation wastes under Subtitle C of RCRA. Jd. at 1313-1316.

* The wastes were bauxite refining muds, phosphogypsum from

phosphoric acid plants, slag from phosphorus reduction, and slag

from primary metal smelters. 50 Fed. Reg. 40,301 (1985).

7

clusion under the “special waste” criteria. 50 Fed. Reg.

40,294-40,295, 40,301. The six smelter wastes that had

been removed from the listing regulations after the enact-

ment of the Bevill Amendment, by contrast, were pro-

duced in much lower volumes, and EPA had already de-

termined in 1980 that they posed a substantial hazard.

Accordingly, EPA proposed to relist those wastes as

hazardous wastes subject to Subtitle C regulation. Jd. at

40,295; Pet. App. 66a-69a. See Pet. App. 1la-12a.

Pursuant to the district court’s orde: in the Adamstown

case, EPA was required to take final action on the 1985

reinterpretation by September 1986. At the end of that

month, EPA did so by withdrawing the 1985 reinterpreta-

tion (the 1986 withdrawal), thereby reinstating the broad

1980 interpretation. 51 Fed. Reg. 36,233; Pet. App.

70a-73a. EPA explained that there were substantial dif-

ficulties in developing practical (quantified) criteria for

applying its high volume, low hazard standard for

distinguishing processing wastes from non-processing

wastes; and because of those difficulties, EPA said, it was

unable to determine whether the Bevill Amendment prop-

erly applied to various wastes other than the four that were

found within the Amendment in 1985. As for the six

smelting and refining wastes that EPA had proposed to

relist as hazardous in 1985, EPA also withdrew the pro-

posal for relisting; as a result, they were neither listed as

hazardous nor included within the mining waste study,

report to Congress, or regulatory determination. See Pet.

App. 14a-1Sa.

3. On petitions for review filed by respondents EDF

and Hazardous Waste Treatment Council (HWTC), the

court of appeals held that the 1986 withdrawal of the 1985

reinterpretation in its entirety, including the proposed

listing of the six smelting and refining wastes, was

8

unlawful. Pet. App. la-3la. Analyzing the language,

structure, and legislative history of the mining waste exclu-

sion, the court concluded, as the EPA had in 1985, that

the Bevill Amendment was intended to apply only to those

smelting and refining wastes that were high volume, low

hazard “special wastes” under EPA’s 1978 standard. Jd. at

21a-26a. The court further concluded that the definitional

problems encountered by EPA, combined with the district

court deadline for taking final action, did not justify

“withdrawing the proposal to relist the six hazardous

smelting wastes which clearly would not qualify under any

acceptable definition, however precise, of ‘special

wastes.’ ” Id. at 27a. “Those six wastes are not properly

within the scope of the Bevill exclusion regardless of the

status of any additional wastes.” Jd. at 27a-28a.

Moreover, the court ruled, it was arbitrary and capricious

for EPA to withdraw the 1985 reinterpretation in its en-

tirety, leaving the concededly overbroad 1980 interpreta-

tion in effect, without first asking the district court for ad-

ditional time to work out the unanticipated difficulties in

refining the high volume, low hazard standard. Jd. at 28a.

Turning to the question of the appropriate relief, the

court of appeals set a date for EPA to remove the six

smelter wastes from coverage under the mining waste ex-

clusion and to relist them as hazardous wastes.‘ The court

also set a schedule for EPA to follow in determining what

processing wastes remain within the Bevill Amendment ex-

clusion. The court added to the schedule various deadlines

for completion of the Section 8002 study for all processing

wastes remaining within the Bevill exclusion and for the

> With respect to relisting, we understand the court to have ordered

only that EPA, once having removed the six wastes from the Bevill ex-

clusion, must make a final determination whether to relist them as

hazardous wastes. 53 Fed. Reg. 35, 413 n.3 (Sept. 13, 1988).

9

required Section 3001(b)(3)(C) regulatory determination.

Pet. App. 30a-3la. The court later extended the deadlines.

Id. at 32a-33a.

4. In compliance with the court of appeals’ order,

EPA issued a final rule declaring outside the scope of the

mining waste exclusion the six smelter wastes originally

listed in 1980. 53 Fed. Reg. 35,412 (Sept. 13, 1988); Pet.

App. 74a-76a. EPA also relisted the wastes, explaining

that the relisting decision was based on an evaluation of

the hazardous waste listing criteria as applied to those

wastes. 53 Fed. Reg. 35,413 n.3, 35,417, 35,419 (Sept. 13,

1988). EPA subsequently published a notice of proposed

rulemaking on the scope of the Bevill Amendment exclu-

sion for all remaining processing wastes (the 1988 pro-

posal). 53 Fed. Reg. 41,288 (Oct. 20, 1988); Pet. App.

77a-96a. EPA has since that time accepted written com-

ments and conducted a public hearing on the 1988 pro-

posal. The court of appeals’ order requires EPA to take

final action on the 1988 proposal by February 15, 1989.

ARGUMENT

1. Petitioners first contend (Pet. 10-16) that the court

of appeals erred in concluding that the Bevill

Amendment’s mining waste exclusion for “processing”

wastes, as it applies to smelting and refining wastes, in-

cludes only high volume, low hazard wastes. They argue

that the Bevill Amendment exclusion unambiguously ap-

plies to all wastes generated in smelting and refining. That

argument is incorrect. Because, in addition, the court of

appeals’ ruling does not conflict with any other judicial

decision or present an issue of extraordinary importance,

further review of the court’s ruling is not warranted.

In the court of appeals, EPA argued that its 1986 with-

drawal was valid, under Chevron U.S.A. Inc. v. Natural

10

Resources Defense Council, Inc., 467 U.S. 837, 842-844

(1984), as a reasonable interpretation of a statutory provi-

sion On an issue as to which Congress did not have a clear

intent. The court of appeals, following the Chevron ap-

proach, found the evidence of congressional intent more

conclusive than EPA suggested. The court held that Con-

gress did have a clear intent on the issue —that it intended

only high volume, low hazard smelting and refining wastes

to be covered by the “processing” exclusion. EPA has

decided not to challenge that ruling, but to accept the

court’s construction of the Bevill Amendment.

Petitioners have not raised in this Court the question

whether the court of appeals erred in rejecting EPA’s

Chevron argument. Rather, petitioners’ sole statutory

argument is that Congress clearly intended that all

smelting and refining wastes were to be covered by the

Bevill Amendment exclusion. But the court of appeals’

analysis of the language, structure, and legislative history

of the Amendment, which we will not repeat here, per-

suasively shows that petitioners’ view is incorrect. Indeed,

EPA has never construed the exclusion as unambiguously

covering all smelting and refining wastes—no matter how

hazardous they are, no matter how far removed from ex-

traction and beneficiation are the smelting and refining in

which they are generated, no matter how unrelated to the

1978 “special waste” concept they are. To the contrary,

EPA expressed doubt about such a broad position even in

1980, immediately after the Amendment was enacted (Pet.

App. 7a-8a); EPA expressly concluded in its 1985 reinter-

pretation that the better reading of the statute was the nar-

rower one that the court of appeals adopted in this case (50

Fed. Reg. 40,293); and as the court of appeals noted (Pet.

App. 26a), EPA did not repudiate that conclusion even

when it withdrew the reinterpretation in 1986.

11

2. Petitioners also argue (Pet. 16-23) that the court of

appeals erred when it determined on its own that the six

smej]ter wastes were outside the Bevill Amendment exclu-

sion without awaiting EPA’s prescription of the criteria

for applying the exclusion. They contend that the court of

appeals thereby violated ripeness and primary jurisdiction

doctrines. Review of this contention is not warranted.

First, EPA has decided to accept the court of appeals’

order and the conclusion on which it rests. Thus, EPA has

removed the six wastes from the Bevill exclusion and

determined to relist them (53 Fed. Reg. 35,412 (Sept. 13,

1988)), and it has proposed high volume, low hazard

criteria that plainly do not apply to the six wastes (id. at

41,296). Moreover, as we read the court of appeals’ order,

petitioners have not been precluded from arguing that the

six wastes do not meet the criteria for listing as hazardous

wastes in challenging EPA’s recent decision to relist them

(although they cannot there argue that the wastes are

within the Bevill Amendment exclusion, as the court in

this case decided that issue).®

In any event, the court of appeals’ decision does not

repudiate any principles of “ripeness” or “primary jurisdic-

tion.” In fact, the court’s conclusion regarding the six

smelter wastes was a natural consequence of its reading of

the statutory mining waste exclusion. The court construed

the statute to encapsulate EPA’s 1978 “special waste” con-

cept. Pet. App. 26a. That concept was not given precise

definition, but the six wastes now at issue were not encom-

passed by it. See 43 Fed. Reg. 58,991-58,992 (1978); Pet.

App. 46a-47a (listing special wastes). Moreover, as the

* Two of the petitioners in this case have filed petitions for review

of EPA’s final rule listing the six hazardous smelter wastes. American

Mining Congress v. EPA, No. 88-1835 (D.C. Cir.); The Aluminum

Ass’n v. EPA, No. 88-1837 (D.C. Cir.).

12

court of appeals pointed out based on EPA’s own figures

(Pet. App. lla), the six smelter wastes are generated in

much lower volume than the identified special wastes. The

court of appeals accordingly concluded, based on its

reading of congressional intent, that the mining waste ex-

clusion, whatever its precise contours, could not cover the

six wastes at issue.

In short, in the court of appeals’ view, any definition of

“high volume, low hazard” that did cover the six smelter

wastes would not be consistent with the statute. It follows

that there was no need for any additional factual deter-

mination by EPA concerning whether the six wastes meet

the new Bevill criteria that EPA promulgates. See Pet.

App. 27a-28a. Given the court’s statutory construction, its

determination that the six wastes are outside the mining

waste exclusion does not present any ripeness or primary

jurisdiction problem. Because, as we have argued, the

court’s construction of the statute does not merit review,

neither does petitioners’ challenge to the court’s deter-

mination regarding the six smelter wastes.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

Scott A. SCHACHTER

Altorney

JANUARY 1989

vw U.S. GOVERNMENT PRINTING OFFICE 1989—241-699/00060