# Opposition Brief — American Mining Congress v. Environmental Defense Fund

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1011

## Text

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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hci bhksatandondbedenbeaaeeeeakeuenkes 4
46 Fed. Reg. (1981):
ED. ..decuhedhehesennsehenscbexeess 5
tele ietasekadacadecéees bukakeebewe 5
50 Fed. Reg. (1985):
ana dé hee phe ndeehikee khan 6
et ced kekn ke eeekenRihe bade nam eeee 6, 10
ED ccick ssobdacdseessdseetesonann 7
cnc 6 teks bbe nde es oe sataweaekebedas 7
SS PPP Teer errr rer rere TT rrr rT 6, 7
51 Fed. Reg. (1986):
ee te din dug ddade ddd nebnae Mabaweans
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0468%3A2. Public record. Not legal advice.