Petition for Writ of Certiorari — American Petroleum Institute v. United States Environmental Protection Agency

Supreme Court brief1990

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

AMERICAN PETROLEUM INSTITUTE,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY, Ct @l«

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CJUURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

G. WILLIAM FRICK CARTER G. PHILLIPS *

RALPH J. COLLELI SAMUEL I. GUTTER

AMERICAN PETROLEUM MARK E. HADDAD

INSTITUTE SIDLEY & AUSTIN

1220 L Street, N.W. 1722 Eye Street, N.W.

Washington, D.C. 20005 Washington, D.C. 20006

(202) 682-8252 (202) 429-4000

July 12, 1990 * Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether Chevron v. Natural Resources Defense Coun-

cil, 467 U.S. 837 (1984), permits a reviewing court,

which has found no reason other than politicai pressure

for an agency’s decision to abandon its proposed rule in

favor of a different final rule, to supply the court’s own

post-hoc rationale for the final rule and remand to the

agency for its summary concurrence.

(i)

PARTIES

The parties to the proceeding below were the Hazard-

ous Waste Treatment Council, the Chemical Manufac-

turers Association (CMA), the Natural Resources De-

fense Council, Chemical Waste Management, Inc., Che-

meteo, Inc., and the United States Environmental Pro-

tection Agency. The intervenors below were the Ameri-

ean Petroleum Institute, the Edison Electric Institute

and the Halogenated Solvents Industry Alliance. The

petitioner here, American Petroleum Institute (API), is

a non-profit trade association whose membership includes

over 200 companies engaged in all aspects of the petro-

leum industry, including exploration, production, refin-

ing, transportation and marketing. API does not have

any outstanding publicly held securities. Nor does API

have any publicly owned parent, subsidiary, or affiliate.

TABLE OF CONTENTS

i) 1, yy)

PARTIES ........

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OPINIONS AND NOTICES BELOW ..........00000000000.....

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STATUTORY PROVISIONS INVOLVED ....................

STATEMENT

REASONS FOR GRANTING THE PETITION

CONCLUSION

SR Re RRR REE EEO RR ERR RR RRR RR ERE RR ER eee ene ee

(iii)

TABLE OF AUTHORITIES

Cases Page

American Textile Mfrs. Inst. v. Donovan, 452 U.S.

GI, GI se sissientsinhiteacaniceiictasdtdeietacpeioialaitaetbenianibiadas 14

Burlington Truck Lines v. United States, 371 U.S.

SEI HEI uss hoesniniishninchintaitealaeaneia lich Minmactbeniiaiiaasiaie 12

Chevron V. Natural Resources Defense Council, 467

ee, Ge i aidleaenienianineionmnel passim.

Citizens to Preserve Overton Park v. Volpe, 401

a: ll 14, 16

Federal Power Comm’n V. Texaco, 417 U.S. 380

SE SIPTIIIET -cinstaeil cthasadliashiemnciltpaihsidacteibeiisadebe ieeantasicsebiaa deteiaiaciids 12

Food Marketing Inst. v. ICC, 587 F.2d 1285

RRS re ces. eee Seer 15

Motor Vehicle Mfrs. Ass’n Vv. State Farm Mutual

Auto. Ins. Co., 4638 U.S. 29 (1988) ...................... 12

SEC v. Chenery Corp., 318 U.S. 80 (1948) —.......... 10

SEC v. Chenery Corp., 332 U.S. 194 (1947) ..10, 12, 18, 14

Statutes

I lela eats 2

Oe re I i ie 5

BR Wremeh, lee, GUTS CRG) cnn nnnnnacanncccceccnccencceseeecssss 5

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221 (codified as

amended at 42 U.S.C. §§ 6921-6939 (1984)) _.... 2,3

Resource Conservation and Recovery Act of 1978,

Pub. L. No. 94-580, 90 Stat. 2795 (codified as

amended at 42 U.S.C. §§ 6901-6992 (1982 &

SS TE SINEE snibutnncniccctsnsddlendeicndaninieatinatnecsetnee 3,13

Other Authorities

EPA Plan to Carry Out Waste Law’s Land Ban

“Fatally Flawed,” Members of Congress Say,

Daily Rep. for Execs. (BNA) No. 47 (March 11,

SIE ses DicssstasehsCcaiiciaintiainbaplanictuaddnes Mididaisithaainaidiabictiasaades 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90

AMERICAN PETROLEUM INSTITUTE,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner respectfully requests that a writ of certio-

rari issue to review the judgment and opinion of the

United States Court of Appeals for the District of Co-

lumbia Circuit.

OPINION AND NOTICES BELOW

The opinion of the court of appeals is reported at 886

F.2d 355 (D.C. Cir. 1989) and is included in the Appen-

dix at pp. la to 41a. The order of that court summarily

affirming the agency’s “Notice of Compliance” and enter-

ing judgment dismissing the petitions for review is not

reported and is included in the Appendix at pp. 42a to

44a. The Final Rule challenged on review in the court

of appeals has not been codified; it is published at 51

Fed. Reg. 40,572 (1986), and is reproduced in relevant

part in the Appendix at pp. 45a to 48a. The Proposed

Rule is published at 51 Fed. Reg. 1602 (1986), and is

reproduced in relevant part in the Appendix at pp. 49a

to 64a. The “Notice Of Compliance” is published at 55

Fed. Reg. 6640 (1990), and is included in the Appendix

at pp. 65a to 77a.

JURISDICTION

The opinion of the court of appeals remanding to the

agency but staying judgment and the issuance of its

mandate was entered on September 15, 1989. The

agency’s Notice of Compliance with the court’s remand

was filed on February 12, 1990. The order of the court

summarily accepting the Notice of Compliance and enter-

ing final judgment dismissing the petitions for review

was filed on March 14, 1990. On June 4, 1990, the Chief

Justice granted an extension of time within which to file

a petition for a writ of certiorari to and including July

12, 1990. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Title 42 U.S.C. § 6924(m) provides in relevant part:

(1) [T]he Administrator shall, after notice and an

opportunity for hearings and after consultation with

appropriate Federal and State agencies, promulgate

regulations specifying those levels or methods of

treatment, if any, which substantially diminish the

toxicity of the waste or substantially reduce the like-

lihood of migration of hazardous constituents from

the waste so that short-term and long-term threats

to human health and the environment are minimized.

(2) If such hazardous waste has been treated to the

level or by a method specified in regulations prom-

ulgated under this subsection, such waste or residue

thereof shall not be subject to any prohibition prom-

ulgated under subsection (d), (e), (f), or (g) of

this section and may be disposed of in a land dis-

posal facility which meets the requirements of this

subchapter.

STATEMENT

1. In 1984, Congress amended the Resource Conserva-

tion and Recovery Act of 1978 (“RCRA”), Pub. L. No. 94-

580, 90 Stat. 2795 (codified as amended at 42 U.S.C. §§ 6901-

6992 (1982 & Supp. IV 1986)), to address, inter alia,

the disposal on land of hazardous wastes. Hazardous and

Solid Waste Amendments of 1984 (“HSWA”), Pub. L.

No. 98-616, 98 Stat. 3221 (codified as amended at 42

U.S.C. §§ 6921-6939 (1984)). In the process, Congress

amended section 3004 of RCRA to restrict or prohibit

land disposal of such wastes except under circumstances

defined by the statute or by Environmental Protection

Agency (“EPA”) regulations. In particular, Congress

required EPA to “promulgate regulations specifying

those levels or methods of treatment, if any, which sub-

stantially diminish the toxieity of the waste or substan-

tially reduce the likelihood of migration of hazardous

constituents from the waste so that short-term and long-

term threats to human health and the environment are

minimized.” RCRA § 3004(m); 42 U.S.C. § 6924(m).

Under the statute, compliance with EPA’s treatment

standards would permit land disposal to continue.

2. On January 14, 1986, EPA issued a Proposed Rule

setting forth a framework for establishing hazardous

waste treatment standards that would permit land dis-

posal under § 3004(m). See App. 49a (hereinafter “Pro-

posed Rule”). The Proposed Rule combined two basic ap-

proaches to environmental regulation: risk-based stand-

ards and technology-based standards. Risk-based stand-

ards, which the agency labeled “screening levels,” iden-

tify the maximum concentration of a particular pollu-

tant that can be disposed on land without posing a sig-

nificant threat to human health or the environment. /d.

at 56a-59a. Technology-based standards identify the

concentration of a particular pollutant that will result

from treatment with the Best Demonstrated Available

Technology, or “BDAT.” Jd. at 52a-56a.

The agency proposed to rely chiefly on screening levels

to set its treatment standards: treatment standards

would be set at screening levels where these levels indi-

cated that less treatment was needed to protect health

and the environment than would be achieved by use of

BDAT, as well as where far more effective treatment

than could be achieved by BDAT would be needed. The

agency would use BDAT levels in setting the treatment

standard only where BDAT levels, although less effective

than an ideal risk-based level, would achieve “substan-

tial reductions in toxicity or mobility and [would] not

pose greater risks than land disposal.” Jd. at 59a. In

that situation, the agency would still use the screening

level “‘as a goal that may be reached as new technologies

emerge.” Id.

EPA explained at length the advantages of using

screening levels and the reasons why such an approach

was consistent with the statute. In particular, explained

EPA, the use of screening levels “will be used to avoid

‘excessive’ treatment.” Jd. at 56a.‘ Indeed, it was im-

portant to use screening levels because “(t]he agency

does not believe that Congress intended that EPA prom-

ulgate standards requiring treatment for treatment’s

sake (i.e, requiring more treatment than necessary to

protect human health and the environment).” Jd. at 56a-

57a (emphasis added). At the same time, the use of

screening levels would enable EPA to identify circum-

stances in which none of the available technologies pro-

vided adequate protection to human health, and would

1EPA explained that excessive treatment would occur if the

agency based its standards solely on BDAT because “available tech-

nologies may be capable of achieving greater reductions in toxicity

. . than are actually necessary to provide protection of human

health and the environment in subsecuent land disposal of hazardous

wastes.” App. 56a.

therefore serve to spur the development of “new and more

efficient technologies.” Jd. at 57a. At the end of its

lengthy discussion of the advantages of screening levels,

EPA noted that it would also consider using two alter-

native approaches, each of which would use only BDAT

to set treatment standards.

On November 7, 1986, after receiving numerous com-

ments indicating widespread support for the use of

screening levels, the agency issued its Final Rule. See

App. 45a. The agency completely reversed itself and an-

nounced that it had abandoned its Proposed Rule in favor

of a BDAT-only approach.’ It did not explain the basis

for its about-face, nor did it attempt to explain how tech-

nology-based standards requiring treatment for treat-

ment’s sake would be consistent with the statute. In-

stead, the agency simply stated that “the plain language

of the statute does not preclude a technology-based ap-

proach.” Jd. at 47a. The agency did disclose, however,

that “several commenters, including eleven members of

Congress, argued strongly that this [screening levels]

approach did not fulfill the intent of the Law.” Jd. (em-

phasis added). Although EPA rejected the contention

that the statute required a BDAT-only approach, the

agency concluded that adopting such an approach “best

responds te the above-stated comments.” /d.*

* EPA’s Final Rule does permit parties to petition the agency for

individual exemptions from the BDAT requirement. 51 Fed. Reg.

40,572, 40,578. When it published its Proposed Rule, however, the

agency had emphasized that “the petition process” had the “major

drawback” of restricting land disposal during the petition review

period and burdening the agency with the need to consider each

petition on its individual merits. App. 5la-52a. In its Final Rule,

EPA stated that it “expects .. . relatively few petitions might be

submitted for review... .” 51 Fed. Reg. 40,572, 40,578.

%’ The eleven members of Congress included two who chaired com-

mittees with substantial responsibility for overseeing EPA’s activi-

ties and determining its budget as well as several other influential

members of such committees. See EPA Plan to Carry Out Waste

3. EPA’s decision to adopt a BDAT-only approach

prompted numerous legal challenges, of which only two

are relevant here. First, Chemical Manufacturers Asso-

ciation (CMA), a petitioner below, argued that the stat-

ute requires EPA to adopt a risk-based approach in con-

junction with a technology-based approach. CMA pointed

out that, as EPA itself had emphasized in its Proposed

Rule, application of the BDAT-only standard will often

result in “treatment for treatment’s sake,” something

Congress could not have intended.* See App. 57a. Second,

intervenor API (petitioner herein), intervenor Edison

Electric Institute, and CMA argued that EPA had not

provided a permissible explanation for abandoning its

original approach in favor of the BDAT-only standard.

The court of appeals, per curiam, held that EPA had

completely failed to give any meaningful explanation for

its ultimate choice. “In order fully to convey the inade-

quacy of EPA’s explanation,” the majority reproduced it

“at length.” App. 18a. As the majority summarized it,

EPA’s explanation consisted solely of a blind submission

to political pressure:

EPA’s “rationale” ... is that several members of

Congress (among others) urged upon it the claim

that Proposition X (‘Congress mandated BDAT”’)

requires Result A (“EPA adopts BDAT”’), and that

although Proposition X is inaccurate, the best re-

sponse to the commenters is to adopt Result A.

Id. at 21a. The court emphatically rejected EPA’s logic

on the grounds that “members of Congress have no power,

once a statute has been passed, to alter its interpretation

by post-hoc ‘explanations’ of what it means.” Jd. at 20a.

Law’s Land Ban “Fatally Flawed,’ Members of Congress Say,

Daily Rep. for Execs. (BNA) No. 47, at A-8 (March 11, 1986).

4CMA argued, for example, that the application of BDAT would

require in many instances that waste water be treated to a greater

degree of purity for land disposal than EPA standards would re-

quire for drinking water. See App. 15a-16a.

Notwithstanding this holding, the majority nevertheless

went on to decide whether the agency’s action satisfied

the two-step analysis set forth in Chevron v. Natural Re-

sources Defense Council, 467 U.S. 837, 842-45 (1984).°

First, under Chevron Step One, the court held that

§ 3004(m) does not preclude a BDAT-only approach.

App. 13a-14a. Next, under Chevron Step Two, the court

argued that the BDAT-only approach was a “reasonable”

interpretation of the statute. Jd. at 14a-17a.

The essence of the majority’s Step Two analysis was

that it was reasonable for EPA to rely exclusively on

BDAT to set treatment standards in light of “the un-

certainties inherent” in relying upon any risk-based ap-

proach. Jd. at 17a. Indeed, the majority developed de-

tailed responses to . ach of the arguments raised concern-

ing the reasonableness of a BDAT-only approach. Jd. at

14a-17a. Nowhere in the Final Rule, however, had EPA

adopted any of these arguments.

Despite the lack of any EPA explanation in the Final

Rule, the majority of the court stated that it was not

precluded from conducting its inquiry, under Chevron

Step Two, into the reasonableness of the BDAT-only ap-

proach. The majority stated that it was sufficient, under

Chevron, that its theory be drawn from statements pub-

lished in the Proposed Rule and from the briefs submitted

by EPA’s counsel. /d. at 17a. The majority expressly

rejected (id.) the suggestion of the concurring judge that

only an agency’s final rule, and “not its prior musings,

nor, ordinarily, its post hoe explanations in court are

proper subjects of judicial review.” Jd. at 38a-39a n.1

(opinion of Silberman, J.) (citations omitted).

Although the majority upheld the Final Rule under

Chevron, it did not immediately affirm. Instead, the ma-

jority concluded that it was necessary tor the agency to

explain adequately why it chose the (now judicially sanc-

5 See page 11, infra (quoting Chevron).

tioned) BDAT-only approach over the screening-level ap-

proach that the agency initially proposed. The court of

appeals stayed issuance of the mandate for 90 days, and

remanded to give EPA the opportunity to submit that

explanation to the court or to withdraw the rule.

4. Judge Silberman concurred in part and in the re

sult. Although he agreed with the majority’s formal de-

cision to remand, he sharply criticized the majority’s

“reasonableness” analysis as a radical departure from

Chevron. According to Judge Silberman, it is “inappro-

priate” and “perhaps analytically impossible” for a court

to consider whether an agency’s statutory interpretation

is “reasonable” where—as here—the agency has offered

no legitimate explanation for its conciusion. Jd. at 34a-

35a (opinion of Silberman, J.).

Judge Silberman began by agreeing with the majority

that EPA’s explanation for its Final Rule “is utterly

devoid of any rationale whatsoever.” Jd. at 37a. More-

over, he observed, an explicit agency rationale was espe-

cially necessary here to explain the Final Rule’s remark-

able severity—to explain, for instance, “how (and why)

Congress would have intended EPA to require generators

to treat the wastewaters they intended to pour into the

ground to levels more pure than Congress requires for

drinking water drawn out of the ground.” Id. at 39a

(emphasis in original). “More fundamentally, it is in-

cumbent upon EPA to identify the incremental ‘threats

to human health and the environment’ that it hopes to

address by opting uniformly for more stringent technol-

ogy-based standards in lieu of health-based standards of

whatever origin.” Jd.

Judge Silberman explained that the same “explanation”

that the majority found inadequate to explain the agency’s

preference for the BDAT-only approach is also inadequate

to explain why that approach is itself a “reasonable’’ in-

terpretation of the statutory mandate. Though he agreed

with the majority that the statutory language does not

directly speak to the matter, he observed that this am-

biguity suffices only to resolve Step One of the Chevron

inquiry. Jd. at 37a-38a. Step Two asks whether the

agency has reasonably explicated the statute, and, absent

any meaningful explication at all, there is simply no an-

swer to this question. By labelling the agency’s action

“reasonable,” “the majority ends up deferring not to an

agency statutory construction, but rather simply to a re-

sult.” Jd. at 39a. “Assuming this judicial approach ever

were permissible, surely after Chevron it no longer is.”

Id.

To Judge Silberman, the outcome of the remand was

now obvious and entirely predictable. The court had al-

ready assured the agency that its interpretation of the

statute was reasonable and had provided EPA with a

rationale that the court had already determined would

be adequate. Moreover, the panel, by retaining jurisdic-

tion, had effectively assured the agency that it would

summarily affirm the Final Rule if EPA simply parroted

the court’s own logic. The court’s remand was therefore

an affirmance in everything but name—‘“‘an empty ges-

ture, one which conforms to principles of judicial review

of agency policymaking only in form.” Jd. at 41a.

6. On February 12, 1990, EPA filed a “Notice of Com-

pliance” with the court’s order, retaining the BDAT-

only approach and formally adopting the court’s sug-

gested rationale that the BDAT-only approach was appro-

priate because “uncertainties currently remain relating

to assessing wastes’ toxicity.” See App. 74a. The agency

saw no need to propose, or to give interested parties any

formal opportunity to comment on, the “Notice.” Jd. at

76a-77a. On March 14, 1990 without requesting further

briefing, the court, without supplemental opinion, sum-

marily dismissed the petitions for review.

REASONS FOR GRANTING THE PETITION

The procedure and analysis employed by the court of

appeals has expanded greatly and perniciously its au-

thority to substitute its judgment for that of an admin-

istrative agency in any of the numerous instances where

that agency has failed adequately to explain the basis for

its actions. Instead of leaving the matter after remand

to an open-minded, independent inquiry and investigation,

the court has empowered itself to cireumscribe narrowly

the realistic choices an agency has on remand by telling

the agency what it may say and how to say it in order

to obtain judicial approval. As if the unambiguous judi-

cial directive were not enough incentive to adopt a par-

ticular interpretation or rule, in this approach the court

of appeals also retains jurisdiction to affirm the agency’s

action on remand without further notice and comment

procedures and without further briefing. No federal

agency in these circumstances can reasonably be expected

to withstand the temptation simply to conform to the

advice of the court, especially when the court’s rationale

supports an outcome that the agency previously selected,

albeit for wholly impermissible reasons. In sum, the hold-

ing below completely undermines the notion of an inde-

pendent administrative process, which lies at the core of

Chevron.

The majority’s approach flouts Chevron in two prin-

cipal ways. First, it effectively construes Chevron as a

repudiation of the basic principle, established in SEC v.

Chenery Corp., 318 U.S. 80, 87, 92-95 (1943) (Chenery

I) and SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

(Chenery II), that an agency, and not a reviewing court,

must supply the explanation needed to determine whether

the agency has acted within the scope of its delegated au-

thority. Yet, instead of repudiating Chenery, Chevron

builds upon it and clarifies its application to judicial re

view of an agency’s statutory interpretation. Second, the

majority turns Chevron on its head: it effectively trans-

forms a principle requiring judicial deference to agency

interpretation into a vehicle for promoting agency sub-

mission to judicial interpretation.

1. In Chevron v. Natural Resources Defense Council,

467 U.S. 837 (1984), this Court declared:

When a court reviews an agency’s construction: of

the statute which it administers, it is confronted with

two questions. First, always, is the question whether

Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is

the end of the matter. ... If, however, the court

determines Congress has not directly addressed the

precise question at issue, the court does not simply

impose its own construction on the statute, as would

be necessary in the absence of an administrative in-

terpretation. Rather, if the statute is silent or am-

biguous with respect to the specific issue, the ques-

tion for the court is whether the agency’s answer

is based on a permissible construction of the statute.

Id. at 842-43 (footnotes omitted). Courts and commen-

tators refer to the preliminary inquiry—‘“whether Con-

gress has directly spoken to the precise question at issue”

—as “Step One” of the Chevron analysis. Accordingly,

“Step Two” enters the picture only where the court de-

termines that Congress did not specifically require a par-

ticular interpretation of the statute. Step Two considers

whether the agency’s interpretation is “reasonable.” Id.

at 844. If it is, then the reviewing court must defer to

it. Id.

Inextricably intertwined with Chevron’s deference re-

quirement is another fundamental principle of adminis-

trative law:

[A] reviewing court, in dealing with a determina-

tion or judgment which an administrative agency

alone is authorized to make, must judge the propriety

of such action solely by the grounds invoked by the

agency. If those grounds are inadequate or im-

- =

proper, the court is powerless to affirm the admin-

istrative action by substituting what it considers to

be a more adequate or proper basis.

Chenery II, 332 U.S. at 196; accord Motor Vehicle Mfrs.

Ass’n V. State Farm Mutual Auto. Ins. Co., 463 U.S. 29,

43, 50 (1983); Federal Power Comm’n v. Texaco, 417

U.S. 380, 397 (1974); Burlington Truck Lines v. United

States, 371 U.S. 156, 168-69 (1962). To invent support

for a rule that the agency itself did not justify “would

propel the court into the domain which Congress has set

aside exclusively for the administrative agency.” Chenery

IT, 332 U.S. at 196.

Chevron and Chenery spring from the same source:

the need to ensure that agencies—not courts—administer

statutes in a rational and politically responsible way.

Both Chevron and Chenery forbid courts to corrupt the

administrative process by performing the kinds of inter-

pretive tasks that Congress has delegated to the agencies.

Although Chevron does not refer explicitly to Chenery,

it seems plain that a court must adhere to the Chenery

principle in conducting its inquiry under Step Two of

Chevron. Step Two requires courts to consider whether

an agency’s interpretation is “reasonable.” 467 U.S. at

844. The Chenery principle permits courts to do this

because, in the normal course of events, an agency has

supplied an explanation—more or less persuasive—to

support its interpretation. Under Chenery, such

“grounds invoked by the agency,” 332 U.S. at 196, must

be the sole subject of the court’s reasonableness inquiry.

Yet where, as here, the agency has provided no legiti-

mate explanation on the merits, a court cannot pass on

the “reasonableness” of the interpretation without pro-

pelling itself “into the domain which Congress has set

aside exclusively for the administrative agency.” Jd. In

short, when Congress implicitly delegates to an agency

the authority to construe an open-ended statute, the

agency itself must supply the reasoned basis for a given

interpretation. A court may review the agency’s posi-

tion, but it may not approach the task of statutory in-

terpretation de novo.°

In the present case, Congress gave EPA the authority

to implement RCRA and, thereby, to interpret, where

necessary, § 3004(m). Whether EPA’s interpretation is

“reasonable” under Chevron depends upon the agency’s

grounds for adopting it. Yet political pressure was

EPA’s only articulated basis for rejecting its original

rule in favor of the BDAT-only approach. Because EPA

completely ignored the actual merits of that approach,

the court was wrong to judge the “reasonableness” of the

interpretation “by substituting what it considers to be a

more adequate .. . basis.” Chenery II, 332 U.S. at 196.’

The majority below claimed to base its “reasonable-

ness” judgment upon several EPA observations publisned

in the Proposed Rule—which, of course, had rejected the

BDAT-only approach (see p. 4, supra)—and upon state-

® Here, for example, the court of appeals was presented essentially

with two challenges to the Final Rule: CMA’s claim that the statute

required EPA to use a risk-based approach; and API’s argument

that EPA’s rationale for choosing a technology-only approach was

inadequate. The court rejected CMA’s argument and held that a

risk-based approach was not required, but agreed with API that

the explanation for the technology-only approach was entirely in-

adequate. At that point, the logical, traditional result should have

been for the court to remand to EPA to consider anew its approach

in a new proceeding and, if EPA chose to retain technology-only,

to develop an adequate rationale of its own. There was no need,

and indeed it was highly unorthodox, for the court to go on, as it

did, to hold that the technology-only approach was reasonable and

to provide a judicial rationale for that approach.

™To be sure, the court of appeals did not literally affirm EPA’s

rule but, rather, “remanded” the case to the agency for a decision

to withdraw the rule or to retain it and provide a formal justifica-

tion. Yet the result of this remand was obvious and entirely pre-

dictable. See page 9, swpra. In effect, the court’s remand was an

affirmance in everything but name or, to repeat Judge Silberman’s

apt characterization, “an empty gesture.” App. 41a.

ments in the briefs submitted by EPA’s counsel. See

App. 17a. As Judge Silberman pointed out, however,

“only the agency’s explanation ef its ultimate choice, not

its prior musings nor, ordinarily, its post hoe explana-

tions in court are proper subjects of judicial review.”

App. 38a-39a n.1 (citations omitted); accord American

Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 539 & n.73

(1981) ; Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 419 (1971). The decision of the Court of

Appeals to make these the subjects of its review implies

that the court may apply the Chevron Step-Two analysis

to an unjustified agency rule whenever the court can

extract some support for the rule from somewhere in the

record or from the agency’s brief. Because a court can

almost always find support for an interpretation in one

or both of these sources, the practical result of this ap-

proach is, again, to “propel the court into the domain

which Congress has set aside exclusively for the admin-

istrative agency.” Chenery II, 332 U.S. at 196.

2. Chevron reaffirmed that the primary authority to

interpret congressional policies should lie with the admin-

istrative agencies that implement them, not with courts.

Chevron, 467 U.S. at 843-45. That courts should gen-

erally defer to an agency’s statutory interpretation is

the central principle of Chevren. The opinion below

stands that principle on its head. Instead of deferring

to the agency’s articulation of reasons for the Final Rule,

the court supplied its own—and remanded to the agency

for what predictably turned out to be essentially a reiter-

ation of the court’s logic. In practical effect, this ap-

proach produces agency deference to—and reliance upon

—judicial interpretation of statutes.

This anti-Chevron dynamic may work serious mischief

on two levels. First, in the short run, as in cases like

this, the court’s provision of a post-hoc rationale gives

the agency an incentive to embrace the procedurally de-

fective status quo. On remand, the agency can be cer-

tain of one thing: if it parrots the court’s logic, it can

guarantee subsequent judicial validation of its interpre-

tation. The court lobs the logic down, the agency bats the

logic back and perfunctorily rounds the bases while the

court looks on with approval. Nowhere in this process

does the agency have any incentive seriously to reevalu-

ate its decision. Instead, the agency has a compelling

incentive to adopt the court’s post-hoc rationale for the

status quo, which effectively has been pre-approved, and

which is obviously the path of least resistance.*

In the present case, for instance, EPA had no incentive

to correct the procedural defect that underlies this law-

suit, t.e., its abdication of reason in the face of politicai

pressure. Thus, it is still uncertain what decision the

agency would have rendered if it had been required to

explain its choice de novo—that is, if the court had sim-

ply remanded the inadequate Finel Rule for further rule-

making proceedings without supplying the agency with

an approved explanation.

It is quite possible, for instance, that the agency would

have returned to the choice it originally made before it

faced political pressure. If ever there were a case where

a court should have forced an agency to produce its own

explanation for its actions, it is a case where, as here,

the agency explicitly acknowledged that it had succumbed

to political pressure. Yet here, the court simply com-

pounded the agency’s error by providing strong judicial

incentive to preserve the tainted result. This process is

8 The D.C. Circuit has strayed far from its position in 1978, when

it declared:

[W]e must recognize the danger that an agency, having reached

a particular result, may become so committed to that result as

to resist engaying in any genuine reconsideration of the issues.

The agency’s action on remand must be more than a barren

exercise of supplying reasons to support a pre-ordained result.

Post-hoc rationalizations by the agency on remand are no more

permissible than are such arguments when raised bv appellate

counsel during judicial review.

Food Marketing Inst. v. ICC, 587 F.2d 1285, 1290 (1978).

particularly prejudicial to the rights and interests of

affected parties because it allows the agency to submit

its pre-approved rationale directly to the court for a

“rubberstamp” affirmance without supplemental briefing

or even a supplemental opinion.

The opinion below is pernicious on a second level as

well. It raises the specter that, over time, courts may

well continue to misconstrue Chevron and to offer their

own theories for the reasonableness of agency interpre-

tation. If this happens, agencies may start relying on

courts to “rescue” them from the “predicament” of ar-

ticulating justifications for difficult policy choices. See

App. 4la (Silberman, J., concurring). Such reliance

would be especially likely where, as here, the agency has

a political incentive to arrive at one particular outcome

to the exclusion of various alternatives that a reasoned

inquiry might support. Agencies would be prempted in-

creasingly to rely upon the post-hoc rationalizations of

their lawyers, see, e.g., Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 419 (1971), because they

could count on reviewing courts to rely upon those ra-

tionalizations as well.

3. This Court should grant certiorari to clarify the

essential role that the Chenery principle plays in a proper

Chevron analysis, and to prevent future distortions of

the administrative process. The court should then re-

mand the case for additional proceedings.

Only additional proceedings untainted by efforts of

other branches of government to interfere with the exec-

utive’s function will enable us to know whether EPA

rejected its original approach in favor of the BDAT-

only standard because, in its expert judgment, the latter

approach best promotes the statutory policies, or because,

in a continuing spirit of submission, the agency simply

parroted the court of appeals’ reasoning.’ As matters

® It bears mention that almost four years have elapsed since EPA

promulgated its Final Rule. In that time a new administrator has

stand now, petitioners have not had a full or fair oppor-

tunity to challenge the ‘‘agency’s” revised explanation for

its Final Rule.’® That revised explanation appeared only

in the agency’s “Notice of Compliance,” without the bene-

fit of prior notice and comment rulemaking procedures

(see App. 76a-77a) and the court that effectively wrote

the draft for the Notice of Compliance summarily af-

firmed it without further briefing.

The court of appeals’ distortion of Chevron will be in-

fluential because it provides the court with discretionary

authority to influence, if not control, the substantive de-

cisions of federal regulatory agencies. If a majority of a

reviewing court agrees with the decision of the agency

but finds its explanation inadequate, then the majority

can employ this new procedure to ensure that on remand

the agency reaffirms its prior position. On the other

hand, if the majority not only finds the agency’s explana-

tion wanting but also disagrees with the agency’s solu-

tion, then it simply remands to the agency in the expec-

tation that the matter will be fully reconsidered. In ef-

fect, the majority could dictate the regulatory outcome

strictly by the appellate process it follows. Such a dan-

gerous practice would be all the worse because it arises

in the D.C. Circuit which reviews the lion’s share of

assumed the leadership of EPA. Moreover, there may have been

technological or methodological advances in the interim that are

relevant to the process of setting screening levels and that deserve

fresh attention.

10 Because the D.C. Circuit’s handling of EPA’s Final Rule was

so unusual and confusing, API also has challenged EPA’s final

action as reflected in the so-called ‘“‘Notice of Compliance’”’ itseif.

The petition for review of that action is now pending in the D.C.

Circuit (American Petroleum Institute v. EPA, No. 90-1268). In

that action, however, the government has taken the position that

the issues on which API seeks review have been “finally adjudi-

cated,” and that there is no basis for further review in the D.C.

Circuit. See EPA’s Nonopposition To Petitioner’s Motion To Defer

Further Proceedings, No. 90-1268 (dated July 5, 1990).

federal agency rulemaking decisions. It is therefore vital

that the Court grant the petition in this case to determine

whether the court of appeals’ assault on Chevren will be

tolerated.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

G. WILLIAM FRICK CARTER G. PHILLIPS *

RALPH J. COLLELI SAMUEL I. GUTTER

AMERICAN PETROLEUM MARK E. HADDAD

INSTITUTE SIDLEY & AUSTIN

1220 L Street, N.W. 1722 Eye Street, N.W.

Washington, D.C. 20005 Washington, D.C. 20006

(202) 682-8252 (202) 429-4000

July 12, 1990 ser * Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 86-1657, 86-1677, 87-1016

and 87-1057

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner,

¥.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

EDISON ELECTRIC INSTITUTE, et al.,

CHEMICAL MANUFACTURERS ASSOCIATION,

Intervenors.

Argued March 22, 1989

Decided Sept. 15, 1989

Before WALD, Chief Judge, SILBERMAN and D.H.

GINSBURG, Circuit Judges.

Opinion PER CURIAM.

Opinion concurring in part and concurring in the re-

sult filed by Circuit Judge SILBERMAN.

PER CURIAM:

In 1984, Congress amended the Resource Conservation

and Recovery Act (“RCRA”), 42 U.S.C. § 6921-6991

(1982 & Supp. IV 1986), to prohibit land disposal of

certain hazardous solvents and wastes containing dioxins

except in narrow circumstances to be defined by Envir-

onmental Protection Agency (“EPA”) regulations. See

Hazardous and Solid Waste Amendments, § 201(a), 42

U.S.C. § 6924(e) (Supp. IV 1986). In these consolidated

cases, petitioners seek review of EPA’s final “solvents

and dioxins” rule published pursuant to Congress’ 1984

mandate. We conclude that the rule under review is con-

sistent with RCRA, but remand one aspect of the rule-

making to the agency for further explanation.

A. Statutory Scheme.

The Hazardous and Solid Waste Amendments of 1984

(“HSWA”), Pub.L. No. 98-616, 98 Stat. 3221 (1984),

inter alia, substantially strengthened EPA’s control] over

the land disposal of hazardous wastes regulated under

RCRA’s “credle to grave” statutory scheme. In pream-

bular language to the HSWA, Congress, believing that

“land disposal facilities were not capable of assuring

long-term containment of certain hazardous wastes,” ex-

pressed the policy that “reliance on land disposal should

be minimized or eliminated.” 42 U.S.C. § 6901 (b) (7).

In order to effectuate this policy, HSWA amended sec-

tion 3004 of RCRA to prohibit land disposal of hazard-

ous-waste unless the waste is “pretreated” in a manner

that minimizes “short-term and long-term threats to

human health and the environment,” id. § 6924(m), or

unless EPA can determine that the waste is to be dis-

posed of in such a fashion as to ensure that “there will

be no migration of hazardous constituents from the dis-

posal [facility]... .” Id. § 6924(d) (1), (e) (1), & (g)

(5).

As amended, RCRA requires EPA to implement the

land disposal prohibition in three phases, addressing the

most hazardous “listed” wastes first. See id. § 6924(g).

In accordance with strict statutory deadlines, the Admin-

istrator is obligated to specify those methods of land dis-

posal of each listed hazardous waste which “will be pro-

tective of human health and the environment.” Jd. In

addition, “[s]imultaneously with the promulgation of

regulations . . . prohibiting . . . land disposal of a par-

ticular hazardous waste, the Administrator” is required

promulgate regulations specifying those levels or

methods of treatment, if any, which substantially

diminish the toxicity of the waste or substantially

reduce the likelihood of migration of hazardous con-

stituents from the waste so that short-term and

long-term threats to human health and the environ-

ment are minimized.

Id. § 6924(m).

Respecting two categories of hazardous wastes, includ-

ing the solvents and dioxins at issue here*® Congress,

however, declined to wait for phased EPA implementa-

tion of the land disposal prohibition. For these wastes,

Congress imposed earlier restrictions, prohibiting land

disposal after dates specified in the HSWA except in ac-

cordance with pretreatment standards or pursuant to

1 EPA was given the task of dividing the wastes presently “listed”

as hazardous under RCRA into thirds according to their “intrinsic

hazard,” 42 U.S.C. § 6924(g)(2) (Supp. IV 1986). In keeping with

RCRA’s deadline, the resulting schedule, promulgated in 1986, see

51 Fed.Reg. 19,300 (1986), required EPA to implement the land

disposal prohibition and promulgate treatment standards for each

third by dates no later than 45, 55, and 66 months after enactment

of the HSWA, respectively. See 42 U.S.C. § 6924(g)(4). One aspect

of EPA’s regulations governing the “first third” of these wastes was

recently upheld on review in Chemical-Waste Management, Inc. v.

EPA, 869 F.2d 1526 (D.C.Cir.1989).

2 The other category is the so-called “California List” wastes, the

rule for which is the subject of Hazardous Waste Treatment Coun-

cu v. Thomas, 885 F.2d 918 (D.C.Cir.1989).

regulations specifying “protective” methods of disposal.

Id. § 6924(e) (1). These prohibitions, as applied to the

solvents and dioxins listed in the HSWA, were to take

effect November 8, 1986. Jd.

In order to further RCRA’s basic purpose of mandat-

ing treatment of hazardous wastes in lieu of land dis-

posal, Congress further provided that storage of wastes

falling within the land disposal prohibition would be

“prohibited unless such storage is solely for the purpose

of the accumulation of such quantities of hazardous

waste as are necessary to facilitate proper recovery,

treatment or disposal.” Jd. § 6924(j). Congress believed

that permitting storage of large quantities of waste as a

means of forestalling required treatment would involve

health threats equally serious to those posed by land dis-

posal, and therefore opted in large part for a “treat as

you go” regulatory regime.

B. The Rulemaking Under Review.

In January 1986, EPA issued a notice of proposed

rule-making announcing its draft implementation of the

land disposal prohibition for solvents and dioxins. See

51 Fed. Reg. 1602 (1986) (hereinafter ‘Proposed

Rule’). Approximately ten months later, after receiving

extensive public commentary on the draft blueprint, EPA

published a final solvents and dioxins rule differing in

some respects from its draft approach. See 51 Fed. Reg.

40,572 (1986) (hereinafter “Final Rule’). These differ-

ences were especially striking in EPA’s implementation

of section 3004(j) and section 3004(m) of RCRA, gov-

erning the storage prohibition and treatment standards,

respectively, for solvents and dioxins. These portions of

the rule, together with other discrete portions of the rule-

making faulted by petitioners, are summarized below.

1. Section 3004(m) Treatment Standards.

In the Proposed Rule, EPA announced its tentative

support for a treatment regime embodying both risk-

based and technology-based standards. The technology-

based standards would be founded upon what EPA deter-

mined to be the Best Demonstrated Available Technology

(“BDAT”); parallel risk-based or “screening” levels

were to reflect “the maximum concentration [of a haz-

ardous constituent] below which the Agency believes

there is no regulatory concern for the land disposal pro-

gram and which is protective of human health and the

environment.” Proposed Rule at 1611. The Proposed

Rule provided that these two sets of standards would be

melded in the following manner:

First, if BDAT standards were more rigorous than

the relevant health-screening levels, the latter would be

used to “cap the reductions in toxicity and/or mobility

that otherwise would result from the application of

BDAT treatment[.]” Jd. Thus, “treatment for treat-

ment sake” would be avoided. Second, if BDAT stand-

ards were less rigorous than health-screening levels,

BDAT standards would govern and the screening level

would be used as “a goal for future changes to the treat-

ment standards as new and more efficient treatment tech-

nologies become available.” Jd. at 1612. Finally, when

EPA determined that the use of BDAT would pose a

greater risk to human health and the environment than

land disposal, or would provide insufficient safeguards

against the threats produced by land disposal, the screen-

ing level would actually become the 3004(m) treatment

standard. Id.

EPA invited public comment on alternative approaches

as well. The first alternative identified in the Proposed

Rule (and the one ultimately selected by EPA) was

based purely on the capabilities of the “best demon-

strated available technology.” Jd. at 1613. Capping

treatment levels to avoid treatment for treatment’s sake,

according to EPA, could be accomplished under this tech-

nology-based scheme by “the petition process”’:

Under this approach, if a prescribed level or method

of treatment under section 3004(m) resulted in ecn-

centration levels that an owner/operator believed to

be overly protective, the owner/operator could peti-

tion the Agency to allow the use of an alternative

treatment level or method or no treatment at all by

demonstrating that less treatment would still meet

the petition standard of protecting human health and

environment.

Id. at 1613. And the function served by health-screening

levels of providing a default standard when the applica-

tion of BDAT technology would itself pose a threat to

human health and the environment could likewise be ful-

filled by the petition process: “an owner operator could| |

petition the Agency .. . to allow continued land disposal

of the waste upon a demonstration that land disposal of

the waste -would not result in harm to human health and

the environment.” Jd.

The Agency received comments supporting both ap-

proaches, but ultimately settled on the pure-technology

alternative. Of particular importance to EPA’s decision

were the comments filed by eleven members of Congress,

all of whom served as conferees on the 1984 RCRA

amendments. As EPA recorded in the preamble to the

Final Rule:

[these] members of Congress argued strongly that

{the health screening] approach did not fulfill the

intent of the law. They asserted that because of the

scientific uncertainty inherent in risk-based deci-

sions, Congress expressly directed the Agency to set

treatment standards based on the capabilities of

existing technology.

The Agency believes that the technology-based ap-

proach adopted in [the] final rule, although not the

only approach allowable under the law, best responds

to the above stated comments.

Final Rule at 40,578.

EPA alse relied on passages in the legislative history

supporting an approach under which owners and opera-

| ;

tor of hazardous waste facilities would be required to

use “‘‘the best [technology] that has been demonstrated

to be achievable.’” Jd. (quoting 103 CONG.REC. 89178

(daily ed. July 25, 1984) (statement of Senator Chaffee).

And the agency reiterated that the chief advantage of-

fered by the health-screening approach—avoiding “‘treat-

ment for treatment’s sake”—could “be better addressed

through changes in other aspects of its regulatory pro-

gram.” Id. As an example of what parts of the program

might be altered, EPA announced that it was “consider-

ing the use of its risk-based methodologies to characterize

wastes as hazardous pursuant to section 3001 [of

RCRA.” Id.; see 42 U.S.C. § 6921 (1982 & Supp. IV

1986) .*

Petitioner CMA challenges this aspect of the rule as

an unreasonable construction of section 3004(m)’s man-

date to ensure that “short-term and long-term threats

to human health and the environment are minimized.”

42 U.S.C. § 6924(m) (1982 & Supp. IV 1986). In the

alternative, CMA argues that EPA has failed to explain

the basis—in terms of relevant human health and envir-

onmental considerations—for its BDAT regime, which

allegedly requires treatment in some circumstances to

levels far below the standards for human exposure under

other statutes administered by EPA. Thus, CMA claims

that EPA’s action in promulgating a technology-based

rule is arbitrary and capricious.

3 Under secton 3001, the Administrator is empowered to list par-

ticular wastes as hazardous, and thus within RCRA’s ambit, “taking

into account toxicity, persistence, [] degradability in nature, poten-

tial for accumulation in tissue, and other related factors such as

flammabilty, corrosiveness, and other hazardous characteristics.” 42

U.S.C. § 6921(a) (1982). The statute provides that the Administra-

tor “shall [] revise[] [these lists] from time to time as may be

appropriate.” Jd. EPA’s current list is set forth at 40 C.F.R. Part

261, Subparts C and D.

2. Section 3004(7) Storage Prohibition.

Section 3004(j) of RCRA, as noted above, prohibits

the storage of wastes falling within a land prohibition

“unless such storage is solely for the purpose of the ac-

cumulation of such quantities of hazardous waste as are

necessary to facilitate proper recovery, treatment, or dis-

posal,” 42 U.S.C. § 6924(j) (1982 & Supp. IV 1986). In

the Proposed Rule, EPA tentatively implemented this

provision to allow generators to accumulate hazardous

wastes on-site for up to 90 days, no questions asked. EPA

selected this period in the belief “that it would allow a

reasonable period for accumulation prior to further man-

agement without interfering with a generator’s produc-

tion process[.]” Proposed Rule at 1709. It observed that

as a matter of prevailing industrial practice “most wastes

were removed from the site of generation within 90 days.”

Id. Nevertheless, out of concern that “a longer time may,

in some cases, be necessary to accumulate sufficient quan-

tities to facilitate proper recovery, treatment, or dis-

posal,” id., the agency solicited comments on alternative

storage periods that might be appropriate.

The comments received by the Agency ranged far and

wide, but all found the 90-day period inadequate. A ma-

jority of the commentors favored a one-year storage pe-

riod in order to accommodate small-quantity generators

and others whose waste streams “accumulate[] more

slowly than others.” Final Rule at 40,582. On the basis

of these remarks, EPA agreed that 90 days was an in-

sufficient period for the adequate accumulation of wastes

to facilitate recovery, treatment or disposal.

EPA ultimately settled on a one-year storage period,

but the implementing regulation differed significantly in

character from the 90-day proposal. The Final Rule

provides:

An owner/operator of a treat™ent facility may store

[] wastes for up to one year unless the Agency can

demonstrate that such storage was not solely for ‘he

purpose of accumulation of such quantities of haz-

ardous waste as are necessary to facilitate proper

recovery, treatment, or disposal.

Id. at 40,643 (emphasis added) (codified at 40 C.F.R.

$ 268.50(b) (1988)). A companion provision requires

owners and operators to bear the burden of proving that

storage for over a one-year period was for proper pur-

poses under RCRA. See id. (codified at 40 C.F.R.

§ 268.50(¢c) (1988) ).

Characterizing the final storage rule, in effect, as a

“shifting of the statutory burden of proof” which “ef-

fectively allows a one year override of the statutory pro-

hibition” against storage, petitioners Hazardous Waste

Treatment Council (“HWTC”) and the Natural Re-

sources Defense Council (““NRDC”) challenge the rule

as inconsistent with section 3004(j) of RCRA.

3. Responsibility for Tes'ing Wastes

Prior to Disposal.

A determination as to whether and ‘o what degree

treatment of a waste is required prior to land disposal

depends upon the concentration of hazardous constitu-

ents in the waste. To facilitate these determinations

and to ensure compliance with the land disposal prohibi-

tions and applicable treatment standards, EPA proposed

to implement requirements for mandatory testing in

some circums‘ances. Proposed Rule at 1691.

The Agency was immediately confronted with the ques-

tion of who, among generators, treatment facilities and

land disposal facilities, should shoulder the responsibility

of testing the waste prior to disposal. While several al-

ternatives were available, EPA initially proposed that

the land disposal facility alone be responsible for such

testing. Proposed Rule at 1692.

10a

Under this approach, the disposal facility must either

conduct an analysis of the waste or obtain an analy-

sis of the waste from the generator or treater. Sim-

ilarly, the owner or operator of a land disposal fa-

cility could arrange for the generator or treatment

facility to supply all or part of the required testing

data. However, if the generator or treater did not

supply the testing data and the land disposal facil-

ity owner or operator chose to accept the waste, the

owner or operator would be responsible for conduct-

ing the required testing.

Id. at 1691. The agency cautioned that this approach

did not leave the generator without responsibility alto-

gether. The generator was still obliged to determine

“whether he must treat his waste prior to disposal.” /d.

“{Rjather than specifically requiring the generator to

conduct testing, [however], the Agency [proposed to]

allow determination of whether wastes meet the regula-

tory thresholds to be based on either testing or knowl-

edge of the characteristics of the waste.” Jd. The Agency

found this proposal desirable because “[i]t is flexible,

does not require redundant testing, fits into the current

regulatory scheme for the waste analysis plan and re-

quires the testing to take place where the liability for

disposal exists—at the land disposal facility.” Jd. at

1691.

The Final Rule bears substantial resemblance to that

initially proposed by EPA, with one principal exception.

As the agency explained, “[b]ecause the [treatment]

approach promulgated [in the Final Rule] does not cap

BDAT with screening levels, more wastes will require

treatment to meet the specified treatment standards.”

Final Rule at 40,597. Given this expanded role for the

treatment industry, EPA decided in the Final Rule to

impose testing requirements on both treatment facilities

and land disposal facilities. But, the agency followed the

proposed rule insofar as it did not require testing by

lla

generators. See id. Thus, when sending waste to either

a treatment facility for pretreatment or directly to a

land disposal facility, the Final Rule permits generators

to base their determinations as to the concentration of

hazardous constituents in the waste on “waste analysis

data, knowledge of the waste, or both.” Jd. No matter

what the basis for their determinations, generators for-

warding wastes directly to land disposal facilities must

certify their conclusions to the facilities’ operators. False

certifications, under the Final Rule, may result in crim-

inal penalties. See 40 C.F.R. § 268.7 (1988); see also

42 U.S.C. § 6928(d) (3) (Supp. IV 1986).

Petitioners HWTC and NRDC contend that it is ar-

bitrary and capricious for EPA to require operators of

treatment and land disposal facilities, but not generators,

to test wastes within the land disposal prohibition.

II. SECTION 3004(M) TREATMENT STANDARDS

CMA challenges EPA’s adoption of BDAT treatment

standards in preference to the approach it proposed initi-

ally primarily on the ground that the regulation is not a

reasonable interpretation of the statute. CMA obliquely,

and Intervenors Edison Electric and the American Petro-

leum Institute explicitly, argues in the alternative that

the agency did not adequately explain its decision to take

the course that it did. We conclude, as to CMA’s primary

challenge, that EPA’s decision to reject the use of screen-

ing levels is a reasonable interpretation of the statute.

We also find, however, that EPA’s justification of its

choice is so fatally flawed that we cannot, in conscience,

affirm it. We therefore grant the petitions for review to

the extent of remanding this issue to the agency for a

fuller explanation.

A. The Consistency of EPA’s Interpretation with RCRA.

Our role in evaluating an agency’s interpretation of

its enabling statute is as strictly circumscribed as it is

12a

simply stated: We first examine the statute to ascertain

whether its clearly forecloses the course that the agency

has taken; if it is ambiguous with respect to that ques-

tion, we go on to determine whether the agency’s inter-

pretation is a reasonable resolution of the ambiguity.

Chevron v. Natural Resources Defense Council, 467 U.S.

837, 842-45, 104 S.Ct. 2778, 2781-838, 81 L.Ed.2d 694

(1984).

1. Chevron Step]: Is the Statute Clear?

We repeat the mandate of § 3004(m) (1): the Admin-

. istrator is required to promulgate “regulations specify-

ing those levels or methods of treatment, if any, which

substantially diminish the toxicity of the waste or sub-

stantially reduce the likelihood of migration of hazardous

constituents from the waste so that short-term and long-

term threats to human health and the environment are

minimized.” 42 U.S.C. § 6924(m) (1).

CMA reads the statute as requiring EPA to determine

the levels of concentration in waste at which the various

solvents here at issue are “safe” and to use those “screen-

ing levels” as floors below which treatment would not be

required. CMA supports its interpretation with the ob-

servation that the statute directs EPA to set standards

only to the extent that “threats to human health and the

environment are minimized.”” We are unpersuaded, how-

ever, that Congress intended to compel EPA to rely upon

screening levels in preference to the levels achievable by

BDAT.

The statute directs EPA to set treatment standards

based upon either “levels or methods” of treatment. Such

a mandate makes clear that the choice whether to use

“levels” (sereening levels) or “methods” (BDAT) lies

within the informed discretion of the agency, as long as

the result is “that short-term and long-term threats to

human health and the environment are minimized.” To

“minimize” something is, to quote the Oxford English

0 a

13a

Dictionary, to “reduce [it] to the smallest possible

amount, extent, or degree.”” But Congress recognized, in

the very amendments here at issue, that there are “long-

term uncertainties associated with land disposal,” 42

U.S.C. § 6924(d)(1)(A). In the face of such uncer-

tainties, it cannot be said that a statute that requires

that threats be minimized unambigously requires EPA

to set levels at which it is conclusively presumed that no

threat to health or the environment exists.

Nor are we at all persuaded by CMA’s interpretation

of NRDC v. EPA, 824 F.2d i146, 1163 (D.C.Cir.1987)

(en banc), in which we held that EPA was not permitted

to “substitute[] technological feasibility for health as the

primary consideration under Section 112 [of the Clean

Air Act].” That provision requires the Administrator

to set air pollution standards “at the level which in his

judgment provides an ample margin of safety to protect

the public health.” 42 U.S.C. § 7412(b)(1)(B). EPA

had set emission standards for vinyl chloride, however,

“based solely on the level attainable by the best available

control technology,” 824 F.2d at 1149, despite its finding

that such levels would create health risks. It had neither

stated that the risks it found were insignificant, nor ex-

plained how the risks it accepted were consistent with

its statutory duty to provide “an ample margin of

safety.” Jd. This court held that EPA had erred in fail-

ing to consider whether the best available technology was

sufficient to provide the statutorily mandated margin of

safety. 7d. at 1164-66.

Contrary to CMA’s implication, however, the court did

not hold, or even imply, the converse—that EPA could

not require generators to use technologies that would

reduce emissions to a point below that which would pro-

vide an ‘ample margin of safety.” Indeed, the court noted

that “Congress . . . recognized in section 112 that the

determination of what is ‘safe’ will always be marked by

scientific uncertainty and thus exhorted the Administra-

l4a

tion to set . . . standards that will provide an ‘ample

margin’ of safety,” id. at 1165; we then concluded that

“lo|nee ‘safety’ is assured, the Administrator should be

free to diminish as much of the statistically determined

risk as possible by setting the standard at the lowest

feasible level.” Id.

This is not to say that EPA is free, under § 3004(m),

to require generators to treat their waste beyond the

point at which there is no “threat” to human health or

to the environment. That Congress’s concern in adopting

§ 3004(m) was with health and the environment would

necessarily make it unreasonable for EPA to promulgate

treatment standards wholly without regard to whether

there might be a threat to man or nature. That concern

is better dealt with, however, at Chevron’s second step;

for, having concluded that the statute does not unambig-

uously and in all circumstances foreclose EPA from

adopting treatment levels based upon the levels achiev-

able by BDAT, we must now explore whether the par-

ticular levels established by the regulations supply a rea-

sonable resolution of the statutory ambiguity. :

2. Chevron Step IJ: Is EPA’s Interpretation

Reasonable?

The screening levels that EPA initially proposed were

not those at which the wastes were thought to be en-

tirely safe. Rather, EPA set the levels to reduce risks

from the solvents to an “acceptable” level, and it ex-

plored, at great length, the manifest (and manifold) un-

certainties inherent in any attempt to specify “safe” con-

centration levels. The agency discussed, for example, the

lack of any safe level of exposure to carcinogenic sol-

vents, 51 Fed.Reg. at 1,628; the extent to which refer-

ence dose levels (from which it derived its screening

levels) understate the dangers that hazardous solvents

pose to particularly sensitive members of the population,

id. at 1,627; the necessarily artificial assumptions that

Mei

15a

accompany any attempt to model the migration of haz-

ardous wastes from a disposal site, id. at 1,642-53; and

the lack of dependable data on the effects that solvents

have on the liners that bound disposal facilities for the

purpose of ensuring that the wastes disposed in a facility

stay there, id. at 1,714-15. Indeed, several parties made

voluminous comments on the Proposed Rule to the effect

that EPA’s estimates of the various probabilities were

far more problematic than even EPA recognized. See,

e.g., Comments of Natural Resources Defense Council,

Record at 29,000-62.

CMA suggests, despite these uncertainties, that the

adoption of a BDAT treatment regime would result in

treatment to “below established levels of hazard.” It re-

lies for this proposition almost entirely upon a chart in

which it contrasts the BDAT levels with (1) levels EPA

has defined as “Maximum Contaminant Levels” (MCLs)

under the Safe Drinking Water Act; (2) EPA’s pro-

posed “Organic Toxicity Characteristics,” threshold levels

below which EPA will not list a waste as hazardous by

reason of its having in it a particular toxin; and (3) lev-

els at which EPA has recently granted petitions by

waste generators to “delist” a particular waste, that is,

to remove it from the list of wastes that are deemed haz-

ardous. CMA points out that the BDAT standards would

require treatment to levels that are, in many cases, sig-

nificantly below these “established levels of hazard.”

If indeed EPA had determined that wastes at any of

the three levels pointed to by CMA posed no threat to

human health or the environment, we would have little

hesitation in concluding that it was unreasonable for

EPA to mandate treatment to substantially lower levels.

In fact, however, none of the levels to which CMA com-

pares the BDAT standards purports to establish a level

at which safety is assured or “threats to human health

and the environment are minimized.” Each is a level es-

tablished for a different purpose and under a different

l6a

set of statutory criteria than concern us here; each is

therefore irrelevant to the inquiry we undertake today.

The drinking water levels, for example, are established

under a scheme requiring EPA to set “goals” at a level

at which “no known or anticipated adverse effects on the

health of persons occur.” 42 U.S.C. § 300g-1(b) (4).

EPA is then to set MCLs as close to its goals as “feas-

ible,” taking into account, among other things, treatment

costs. 42 U.S.C. §§ 300g-1(b) (4), (5). Since SDWA

goals are set only to deal with “known or anticipated”

adverse health effects, a mere “threat” to human health

is not enough in that context. Moreover, SDWA levels

are set without reference to threats to the environment.

Finally, EPA must consider costs in setting its MCLs;

there is no similar limitation in § 3004 of RCRA.

Similarly, in promulgating the OTC levels, EPA made

clear that, “[i]n establishing a scientifically justifiable

approach for arriving at [OTC levels], EPA wanted to

assure a high degree of confidence that a waste which re-

leases toxicants at concentrations above the [OTC level]

would pose a hazard to human health.” EPA Hazardous

Waste Management System; Identification and Listing of

Hazardous Waste ... , Proposed Rule, 51 Fed.Reg.

21,648, 21,649 (1986) (emphases added). Thus it is

clear that wastes with toxicant levels below the OTC

thresholds may still pose “threats to human health [or]

the environment.” Id. at 21,648 (emphases added).

Finally, CMA points to the “delisting levels” as ap-

propriate points of comparison. The term is a bit mis-

leading, however. EPA delists particular wastes in re-

sponse to individual petitions, see, e.g., 42 U.S.C. § 6921

(f) (1), and it has not adopted formal, or even de facto,

levels below which any waste will be delisted. That EPA

has delisted, in particular circumstances, wastes contain-

ing concentrations of solvents higher than those called

for by the BDAT standards adds nothing to CMA’s argu-

ment. The treatment standards establish a generic ap-

i lel el al

TRCN cla A vt

17a

proach, requiring that all wastes deemed to be hazardous

be treated to a set level in order to minimize threats to

health and to the environment. If a waste is listed as

hazardous, and an individual generator wants to dispose

of it without meeting the BDAT standards, it may peti-

tion to have its particular waste delisted. If the agency

grants the delisting petition, only the petitioner is af-

fected; the generally required level of treatment remains

the same. Hence, there is no inconsistency between a

“delisting level,” accepted in particular circumstances,

that permits a higher level of a particular contaminant

then the BDAT level otherwise generally applicable.

In sum, EPA’s catalog of the uncertainties inherent in

the alternative approach using screening levels supports

the reasonableness of its reliance upon BDAT instead.

Accordingly, finding no merit in CMA’s contention that

EPA has required treatment to “below established

levels of hazard,” we find that EPA’s interpretation of

$ 3004(m) is reasonable.

Our concurring colleague suggests that our discussion

of the reasonableness of the BDAT standard is unneces-

sary, if not “perhaphs analytically impossible.’”’ Con.Op.

at 371. Contrary to the impression given in his separate

opinion, however, the basis upon which we find EPA’s

interpretation reasonable here is not one that we have

supplied, but the one EPA itself put forth. In its Initial

Rule document discussing BDAT as well as screening

levels, and in its brief to this court, EPA has presented

precisely the arguments we find persuasive here. While,

as we shall see, those arguments are inadequate to justify

the choice made, in the Final Rule, in favor of BDAT

as against screening levels—which also seem to present a

reasonable approach—they do demonstrate that the BDAT

approach is reasonable.

B. Was EPA’s Explanation Adequate?

The Supreme Court has made it abundantly clear that

a reviewing court is not to supplement an agency’s rea-

18a

sons for proceeding as it did, nor to paper over its plainly

defective rationale: “The reviewing court should not at-

tempt itself to make up for such deficiencies [in the

agency’s explanation]; we may not supply a reasoned

basis for the agency’s action that the agency itself has

not given.” Motor Vehicles Manufacturers Ass’n v. State

Farm Mut. Auto Ins. Co., 463 U.S. 29, 48, 103 S.Ct.

2856, 2866-67, 77 L.Ed.2d 448 (1983) (citing SEC v.

Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577,

91 L.Ed. 1995 (1947)). “We will, however, ‘uphold a

decision of less than ideal clarity if the agency’s path may

reasonably be discerned.’” Jd. (quoting Bowman Trans-

portation, Inc. v. Arkansas-Best Freight System, Inc.,

419 U.S. 281, 286, 95 S.Ct. 488, 442, 42 L.Ed.2d 447

(1974) ). Accordingly, in order to determine whether we

can affirm EPA’s action here, we must parse the language

of the Final Rule to see whether it can be interpreted

to make a sensible argument for the approach EPA

adopted. We find that it cannot.

As we have said, EPA, in its Proposed Rule, expressed

a tentative preference for an approach that combined

screening levels and BDAT. It indicated that it thought

either that approach or BDAT alone was consistent with

the statute, and recognized that there were myriad un-

certainties inherent in any attempt to model the health

and environmental effects of the land disposal of hazard-

ous wastes. It initially concluded, however, that despite

those uncertainties, the better appreach was to adopt the

combination of screening levels and BDAT. Nevertheless,

in the Final Rule, it rejected its earlier approach, and

adopted a regime of treatment levels defined by BDAT

alone.

In order fully to convey the inadequacy of EPA’s ex-

planation, we quote the relevant portion of the Final Rule

at length:

Although a number of comments on the proposed

rule favored the first approach; that is, the use of

Neti AS a Niet

AD Rt IA de A AE LE ane ral Ee

19a

screening levels to “cap” treatment that can be

achieved under BDAT, several commenters, includ-

ing eleven members of Congress, argued strongly

that this approach did not fulfill the intent of the

law. They asserted that because of the scientific un-

certainty inherent in risk-based decisions, Congress

expressly directed the Agency to set treatment stand-

ards based on the:capabilities of existing technology.

The Agency believes that the technology-based ap-

proach adopted in today’s final rule, although not the

only approach allowable under the law, best responds

to the above-stated comments. Accordingly, the final

rule establishes treatment standards under RCRA

section 3004(m) based exclusively on levels achiev-

able by BDAT. The Agency believes that the treat-

ment standards will generally be protective of hu-

man health and the environment. Levels less strin-

gent than BDAT may also be protecitve.

The plain language of the statute does not compel

the Agency to set treatment standards based ex-

clusively on the capabilities of existing technol-

ogy. . . . By calling for standards that minimize

threats to human health and the environment, the

statute clearly allows for the kind of risk-based

standard originally proposed by the Agency. How-

ever, the plain language of the statute does not pre-

clude a technology-based approach. This is made

clear by the legislative history accompanying the

introduction of the final section 3004(m) language.

The legislative history provides that “[T]he requi-

site levels of [sic] methods of treatment established

by the Agency should be the best that has been dem-

onstrated to be achievable’ and that “[T]he intent

here is to require utilization of available technology

in lieu of continued land disposal without prior treat-

ment.” (Vol. 130, Cong. Ree. 9178, (daily ed., July

25, 1984)). Thus, EPA is acting within the author-

20a

ity vested by the statute in selecting [sic] to promul-

gate a final regulation using its proposed alternative

approach of setting treatment standards based on

BDAT.

The Agency believes that its major purpose in

adopting the risk-based approach of the proposal

(i.e., to allow different standards for relatively low-

risk, low-hazard wastes) may be better addressed

through changes in other aspects of its regulatory

program. For example, EPA is considering the use

of its risk-based methodologies to characterize wastes

as hazardous pursuant to section 3001.

51 Fed.Reg. at 40,578.

To summarize: after EPA issued the Proposed Rule,

some commenters, including eleven members of Congress,

chastised the agency on the ground that the use of screen-

ing levels was inconsistent with the intent of the statute.

They stated that because of the uncertainties involved,

Congress had mandated that BDAT alone be used to set

treatment standards. EPA determined that the “best

respon[se]” to those comments was to adopt a BDAT

standard. It emphasized, however, that either course

was consistent with the statute (and that it was there-

fore not required to use BDAT alone). Finally, it as-

serted, without explanation, that its major purpose in

initially proposing screening levels “may be better ad-

dressed through changes in other aspects of its recula-

tory program,” and gave an example of one such aspect

that might be changed.

This explanation is inadequate. It should go without

saying that members of Congress have no power, once a

statute has been passed, to alter its interpretation by

post-hoe “explanations” of what it means; there may be

societies where “history” belongs to those in power, but

ours is not among them. In our scheme of things, we

consider legislative history because it is just that: history.

itil

2la

It forms the background against which Congress adopted

the relevant statute. Post-enactnient statements are a

different matter, and they are not to be considered by

an agency or by a court as legislative history. An agency

has an obligation to consider the comments of legislators,

of course, but on the same footing as it would those of

other commenters; such comments may have, as Justice

Frankfurter said in a different context, “power to per-

suade, if lacking power to control.” Skidmore v. Swift

& Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed.

124 (1944).

It is unclear whether EPA recognized this fundamen-

tal point. On the one hand, it suggested that the adop-

tion of a BDAT-only regime “best respond[ed]” to the

comments suggesting that the statute required such a

rule. On the other hand, EPA went on at some length

to establish that the comments were in error, in that

screening levels are permissible under the statute. EPA’s

“rationale,” in other words, is that several members of

Congress (among others) urged upon it the claim that

Proposition X (‘Congress mandated BDAT”’’) requires

Result A (“EPA adopts BDAT’’), and that although

Proposition X is inaccurate, the best response to the com-

menters is to adopt Result A.

Nor is anything added by EPA’s bald assertion that

its reason for initially preferring Result B (screening

levels) “may be” better served by other changes in the

statutory scheme. In its Proposed Rule, EPA had, after

extensive analysis of the various alternatives, come to the

opposite conclusion. It is insufficient, in that context, for

EPA to proceed in a different direction simply on the

basis of an unexplained and unelaborated statement that

it might have been wrong when it earlier concluded

otherwise.

ae ee th

hibshiaiaincidtt oe?

In the entire relevant text of the Final Rule, EPA

; neither invokes nor discusses the uncertainties inherent

in the land disposal process in support of its determina-

22a

tion to use BDAT. EPA’s only mention of the concept

is in its description of the commenters’ argument that,

because of such uncertainties, Congress mandated BDAT

—an argument that EPA rejected. While it may be

that EPA intended that reference to act as an incorpora-

tion of all the uncertainties it outlined in its Proposed

Rule, or all the many challenges to its assumptions that

commenters submitted in response to the Proposed Rule,

that intent, if indeed it exists, is so shrouded in mist that

for this court to say that we could discern its outlines

would be as illogical as the agency’s explanation in the

Final Rule itself.

Accordingly, we grant the petitions for review in this

respect.

III. SECTION 3004(3) STORAGE PROHIBITION

HWTC and NRDC contend that the Administrator’s

regulation allowing generators to store wastes on-site for

periods of up to one year unless EPA “can demonstrate

that such storage was not solely for the purpose of ac-

cumulati[ng]” quantities of waste suitable for treatment,

40 C.F.R. § 268.50(b) (1988), violates Congress’ “plain

intent” in enacting section 3004(j) of RCRA. According

to these petitioners, this provision’s flat prohibition

against storage of wastes “unless such storage is solely

for [proper purposes],” 42 U.S.C. § 6924(j) (Supp. V

1987), requires generators—and not EPA—to bear the

burden of proving that their motives in storing prohibited

wastes are consistent with section 3004(j), no matter

what the circumstances. “By shifting the statutory bur-

den of proof of EPA .. .”, we are told, “the rule ef-

fectively allows a one year ‘override of the statutory pro-

hibition.”

It is unclear to what petitioners refer when they speak

of the “statutory burden of proof.” At common law, the

“burden of proof” concept bore two somewhat dissimilar

meanings. In classical applications, the party carrying

BAT Rie ye MARE Be + tha

28a

the burden of proof bore the risk of nonpersuasion of the

factfinder; in other words, the “burden of proof” custom-

arily implied the “burden of persuasion.” 9 WIGMORE,

EVIDENCE § 2486 (Chadbourn rev. 1981). A secondary

meaning developed, however, in service of the role of the

trial judge in che common-law tribunal. To enable the

judge “to keep the jury within the bounds of reasonable

action,” the party bearing the burden of proof had a

threshold responsibility of satisfying the judge that suffi-

cient evidence had been advanced “to form a reason-

able basis for the verdict.” Jd. § 2487, at 293. The dis-

charge of this so-called “burden of production” was a

prerequisite, at common law, to getting one’s case to the

jury at all.

In administrative proceedings, the APA provides a de-

fault rule for allocating proof burdens when regulatory

statutes do not set forth separate rules. Specifically, “the

proponent of a rule or order,”’ usually the agency in pro-

ceedings charging statutory violations, “has the burden

of proof.” 5 U.S.C. §556(d) (1982). We have held,

though, that the APA uses the term in its secondary

application; “the ‘burden of proof’ it casts upon the ‘pro-

ponent’ is the burden of coming forward with proof, and

not the ultimate burden of persuasion.” Environmental

Defense Fund, Inc. v. EPA, 548 F.2d 998, 1013 (D.C.

Cir.1976) cert. denied, 431 U.S. 925, 97 S.Ct. 2199, 53

L.Ed.2d 239 (1977); accord, Old Ben Coal Corp. v. In-

terior Bd. of Mine Operations Appeals, 523 F.2d 25, 30

(7th Cir.1975). As the House Report accompanying the

APA explains, “section [556(d)] means that every pro-

ponent of a rule or order or the denial thereof has the

burden of coming forward with sufficient evidence there-

for.” H. Rep. No. 1980, 79th CoNnG., 2D Sess. 34 (1946),

U.S. Code Cong. & Admin.News 1946, p. 1195. While

the locus of the ultimate burden of persuasion may be

unclear—indeed, it may rest on the opponent of an agency

order, see 83 K. DAvis, ADMIN. L. TREATISE § 16.9 at 258

(2d ed. 1980)—it is beyond doubt that the initial burden

24a

of going forward with a prima facie case of unlawful

conduct rests on the agency charging the statutory viola-

tion, unless the regulatory statute provides otherwise.

Insofar as petitioners allege that EPA has shifted this

threshold burden of going forward from the regulated

industry to itself in contravention of RCRA, their con-

tention plainly runs aground on the APA.‘ For under

the APA’s guiding provisions, “‘[no] agency is entitled

to presume that the conduct of any person or status of

any enterprise is unlawful or improper” unless the

agency’s organic statute provides otherwise. Environ-

mental Defense Fund, Inc., 548 F.2d at 1014-15 (quoting

S.REP. No. 752, 79th Cong., 1st Sess. 22 (1945)); see

also Industrial Union Dept., AFL-CIO v. American Pe-

troleum Inst., 448 U.S. 607, 653 & n. 61, 100 S.Ct. 2844,

2869 & n. 61, 65 L.Ed.2d 1010 (1980) (opinion of Stev-

ens, J.). Petitioners point to nothing in RCRA that

purports explicitly or implicitly to alter the APA’s back-

ground rule placing this threshold burden of going for-

ward on the agency. The language of section 3004(j) is

silent as to allocations of production burdens (or, for that

matter, the ultimate burden of persuasion) between the

agency (the charging party) and the regulated respond-

ent. The legislative history of RCRA’s storage prohibi-

tion, as cited to us by HWTC and NRDC, is equally un-

illuminating; it merely repeats the proscription of section

4 EPA has provided, with respect to its regulatory programs gen-

erally, that “[t]he complainant has the burden of going forward

with and of proving that the violation occurred as set forth in the

complaint. ...” 40 C.F.R. § 22.24 (1988) (emphasis added). This

regulation can be read as locating the burden of persuasion on the

agency in proceedings under any of the statutes it administers;

nevertheless, this passage was not cited to the court by either party

and we therefore do not have the agency’s interpretation of this

regulation before us. In any event, as we note infra, RCRA does

not speak te the allocation of production or persuasion burdens in

administrative proceedings. To the extent petitioners allege a

misallocation of the burden of persuasion under § 3004(j), as such,

we reject that contention as well.

| -

25a

3004(j). And petitioners identify no other provision in

the statute that so much as even addresses procedural

burdens in acministrative proceedings under RCRA. See

generally 42 U.S.C. § 6928 (1982 & Supp. IV 1986) (gov-

erning enforcement proceedings). The Administrator’s

interpretation of section 3004(j) to comport with the pro-

cedural tradition of the APA can hardly be termed un-

reasonable in this setting. See Chevron U.S.A. Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 843,

104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (“if the

statute is silent or ambiguous with respect to [a] spe

cific issue, the question for the court is whether the

avency’s answer is based on a permissible construction

of the statute”). Were the Administrator, thus, to assess

noncompliance penalties against a generator in the belief

that the generator had accumulated prohibited wastes for

improper purposes, the generator would be entitled to air

the agency’s charges in a public factfinding hearing. See

42 U.S.C. § 6928(b) (Supp. V 1987). And at any such

hearing, the Administrator, as the “proponent” of the

agency compliance order, would be required to come for-

ward at least with a prima facie case suggesting im-

proper storage. 5 U.S.C. § 556(d) (1982); see Environ-

mental Defense Fund, Inc., 548 F.2d at 1014-15; Old Ben

Coal Corp., 523 F.2d at 30. As we read the challenged

regulation, as such, it simply sets forth in RCRA ter-

minology the APA’s default rule regarding the burden

of production; to wit, “unless the Agency can demonstrate

that [the generator’s}] stérage [of prohibited wastes for

less than one year] was not solely for the purpose of

accumulation of such quantities of hazardous waste as

are necessary to facilitate proper recovery, treattent or

disposal,” the storage will not be penalized under RCRA.

The regulation shifts nothing; it places no evidentiary

burden on the agency that it would not otherwise be re-

quired to bear under section 556(d).

The Administrator, to be sure, has published compan-

ion regulations providing, with respect to storage of pro-

aaa eal, acca aii

26a

hibited wastes for periods greater than one year, that

“the owner/operator bears the burden of proving that

such storage was solely for the purpose of accumulation

of such quantities of waste as are necessary [for treat-

ment].” 40 C.F.R. § 268.50(c) (1988). But this in no

way suggests, as petitioners argue, that the Adminis-

trator has “reverse[d] the statutory presumption against

storage” for periods of one year or less. Rather, the Ad-

ministrator has simply determined (reasonably, we think)

that producing evidence that a generator has stored pro-

hibited wastes for a period greater than one year fulfills

the agency’s section 556(d) obligation to come forward

in administrative proceedings with a prima facie case of

unlawful storage. Once the Administrator makes such

a prima facie showing, of course, the burden may per-

missibly shift to the generator to demonstrate that such

lengthy storage was in fact motivated by legitimate con-

siderations under RCRA. See First Nat’l Bank of Bel-

laire v. Comp. of Currency, 697 F.2d 674, 683 (5th Cir.

1983); Environmental Defense Fund, Inc., 548 F.2d at

1014-15; Old Ben Coal Corp., 523 F.2d at 30.

At bottom, what petitioners quarrel with is the precise

point at which the Administrator can satisfy his initial

burden of production in proceedings charging a section

3004(j) violation solely by introducing evidence of the

duration of the generator’s storage. Indeed, petitioners

conceded at oral argument that they in all likelihood

would not have challenged the Administrator’s proposed

rule—providing a 90-day storage window—had it been

carried forward. But petitioners offer no basis to ques-

tion the Administrator’s professional judgment on this

score. The record ampiy supports the Administrator’s

conclusion that aggregation: of wastes for proper treat-

ment may require accumulation for periods of up to one

year. It was eminently reasonable, under the circum-

stances, for the Administrator to determine that he

would have to come forward with more than the mere

duration of storage for less than one year to make out a

i a ee ee

27a

prima facie case under section 3004(j). Accordingly, we

hold that 40 C.F.R. § 268.50(b) is reasonable and con-

sistent with RCRA.

IV. TESTING RESPONSIBILITY

As part of its implementation of the Hazardous and

Solid Waste Amendments of 1984 (“HSWA”), Pub.L.

No. 98-616, 98 Stat. 3221, the EPA developed an en-

forcement plan to assure that wastes that are prohibited

from land disposal will not make their way into the

ground. Under the EPA’s scheme, restricted wastes will

foiiow one of two paths. First, if the generator of the

waste determines that he is managing a restricted waste

and the waste does not meet the applicable treatment

standards, he must notify the treatment facility of the

appropriate treatment standards, see 40 C.F.R. § 268.7

(a) (1); the treatment facility is then required, pursu-

ant to 40 C.F.R. § 268.7(b), to test the treatment residue

to assure that the waste, once treated, meets those stand-

ards before forwarding the waste to a land disposal fa-

cility,* which is also required to test the waste, 40 C.F.R.

$ 268.7(c). Alternatively, if a generator determines that

he is managing a restricted waste, but that the waste can

be land disposed without further treatment, he may ship

the waste directly to landfill operators, the final handlers

of the waste who, under the EPA scheme, bear ultimate

responsibility for testing and determining that land dis-

posed wastes meet the applicable treatment standards.

See 51 Fed.Reg. 40,597 ( November 7, 1986).

Although earlier handlers of wastes—both waste gen-

erators and treatment facilities—are also required by the

regulations to certify that waste leaving their control and

marked for land disposal meets the appropriate treat-

ment standards, only the latter are expressly required

5 As the EPA announced in the preamble to its final rules, “These

testing requirements for treatment residuals apply to generators

who treat, store, and dispose onsite.” 51 Fed.Reg. at 40,598.

28a

to test the waste in order to certify compliance. See 40

C.F.R. § 268.7(b). Generators of waste are “recom-

mend{ed|” to conduct “fa ormprchensive ara'ysis of each

waste stream ... at least annually,” 51 Fed.Reg. at

40,598, but in the end the agency’s regulations leave

generators the option of certifying that their wastes

comply with treatment standards on the basis of, inter

alia, their “knowledge” of the waste:

If a generator determines that he is managing a

restricted waste under this part, and determines

that the waste can be land disposed without further

treatment,

with each shipment of waste he must submit, to the land

disposal facility, a notice and a certification stating that

the waste meets the applicable treatment standards .. .

(ii) The certification must be signed by an author-

ized representative and must state the following:

I certify under penalty of law that I personally have

examined and am familiar with the waste through

analysis and testing or through knowledge of the

waste to support this certification that the waste

complies with the treatment standards specified in

40 C.F.R. Part 268 Subpart D and all applicable

prohibitions set forth in 40 C.F.R. 268.32 or RCRA

section 3004(d). I believe that the information I

submitted is true, accurate and complete. I am

aware that there are significant penalties for sub-

mitting a false certification, including the possibility

of a fine and imprisonment.

40 C.F.R. § 268.7(a) (2) (emphasis added).

HWTC and NRDC challenge the agency’s decision to

allow generators to rely on their knowledge to certify

that wastes are within treatment standards. Petitioners

note that wastes requiring treatment must be tested be-

fore being sent to land disposal facilities, and they there-

fore argue that it is arbitrary and capricious for the

a ee es

29a

agency to fail to require generators of waste to test

their waste streams in order to certify that admittedly

restricted wastes conform to the applicable treatment

standards. They charge that since the applicable treat-

ment standards are stated in terms of specific and mi-

nute concentrations of hazardous constituents, without

actual test data, “generators cannot possibly determine

whether their wastes are generated meet these treatment

standards and can be land disposed.” Brief for Peti-

tioners HWTC and NRDC at 14.° They urge this court

to replace the agency’s rule with a requirement of their

own: “{W]astes, which a generator has determined (by

whatever means) to be: 1) hazardous and 2) subject to

a land disposal restriction (e.g., they are a listed solvent

or dioxin waste), must be tested by the generator if the

generator is to certify that the wastes meet treatment

standards and can be transported directly to a land dis-

posal facility.’ HWTC/NDRC Reply Br. at 12 (empha-

sis in original). This is a requirement we are unwilling

to impose.

First, unlike petitioners we find it neither nonsensical

nor absurd to expect that generators may to some extent

6 As a preliminary matter, we can dismiss HWTC’s and NRDC’s

argument that the rule allowing generators to rely on their knowl-

edge of their waste somehow reflects a technical defect in the rule-

making, inasmuch as it “conflicts” with the agency’s proffered

explanation of its rules. Petitioners point out that the preamble to

the final rules states that generators are “‘responsible for testing and

recordkeeping,” 51 Fed.Reg. at 40,597, but the rule does not contain

any such absolute requirement. However, as was noted at oral

argument, the preamble states just a few lines later that generators

may make determinations about the hazardous nature of their wastes

and the treatment required “based on waste analysis data, knowledge

of the waste, or both. Where this determination is based solely on

the generator’s knowledge of the waste, the Agency is requiring that

the generator maintain in the facility operating record all support-

ing data used to make this certification.” Jd. (emphasis added).

Thus, it is clear to us that the preamble does not reflect a fundamen-

tal conflict with the rule as adopted, but rather merely states it in a

different way.

30a

“know their waste” without testing each batch produced.

Indeed, waste generators who apply the same methods

to the same inputs in the same manner as part of the

same production process every day are, after a while,

likely to be in a very good position to know the hazardous

contents in their waste. As we read the EPA’s rules and

statements during the rulemaking process, the agency’s

scheme does not allow generators to make guesses about

the hazardous nature of their wastes without empirical

or analytical foundation. Rather, waste generators are

allowed to rely on actual “knowledge” they have ac-

quired only if such knowledge enables them to certify

that their waste complies with applicable treatment

standards. Generators are required to keep records of

all data that goes into their certifications, see 40 C.F.R.

$ 268.7(a) (4), and they are subject to penalties for er-

roneous certifications. Thus, contrary to petitioners’ as-

sertion that “nothing in the rule itself . . . requires

generators shipping wastes directly to a landfill to test

the waste to determine compliance with the treatment

standards,” Letter from HWTC (March 28, 1989) at 2,

the EPA’s scheme will necessarily require at least some

initial testing of generators’ waste stream in order to

comply with the rules’ plain directives.‘ If down the road

the generators’ familiarity with their wastes does indeed

render them capable of certifying the wastes’ contents

without conducting more frequent testing, then we see no

reason to compel the EPA to require such unnecessary

testing.

Furthermore, we do not find the EPA’s decision to re-

quire treatment facilities to conduct testing but to allow

generators to rely on their knowledge to be “arbitrary.”

The rulemaking record adequately reflects the EPA’s

sense that while generators can be expected to have rea-

7 Cf. 51 Fed.Reg. at 40,597 (“A waste analysis must be conducted

[by the generator of the waste] if there is reason to believe that the

composition of the waste has changed or if the treatment process

has changedr4.— -

3la

sonable knowledge of familiar wastes, off-site treatment

facilities do not always have similar familiarity with the

waste they handle. Moreover, it is the treatment facil-

ity’s job to transform waste otherwise deemed too dan-

gerous to permit into landfills into acceptable form. It is

therefore not irrational for the EPA to introduce a

backup, arguably “redundant” testing stage for these

wastes requiring treatment, and even to consider this a

“critical” stage in the process. See 51 Fed.Reg. at

40,597.

Although the agency’s certification system may be

somewhat imprecise with regard to generators of waste,

this imprecision is not fatal. Rather, the EPA has ex-

plicitly stated that the crucial stage in the process, upon

which the agency has placed its most heavy reliance, is

the point at which the waste reaches the land disposal

facility: at this juncture, just prior to land disposal,

waste must be rigorously tested to confirm that it is what

others have represented it to be and that it may per-

missibly be land disposed. Given the agency’s reliance

on testing by landfill owners and operators to intercept

erroneously identified waste, we cannot say that the EPA

acted arbitrarily or capriciously in deciding not to re-

quire elaborate and even redundant testing * by genera-

tors presumably able to identify in a large number of

eases the hazardous components of the waste they gen-

erate.

HWTC and NRDC further argue that the testing re-

quired of disposal facilities will be inadequate to assure

8 Petitioners charge that the EPA’s claim that it declined to

require generator testing on the ground that it would be redundant

was “nothing more than a post hoc rationalization of counsel which

is not contained in the administrative record.” Reply Brief at 10.

However, in the proposed regulations the EPA clearly expressed its

preference for a scheme under which generator testing would not be

absolutely required for the particular reason, inter alia, that this

approach “does not require redundant testing. ...” 51 Fed.Reg.

at 1692.

32a

that only wastes that are permitted to be land disposed

will actually enter landfills.° In particular, they com-

plain that “substantial percentages of individual waste

shipments received by a landfill operator are not re-

quired to be tested for compliance with the treatment

standards” by actual testing. Letter from HWTC

(March 28, 1989) at 3. Despite these concerns, however,

the regulations are structured to assure that the fre-

quency of testing is sufficient to identify wastes that do

not comply with treatment standards.

For the purposes of compliance with the land dis-

- posal restrictions rule, a waste analysis plan for an

off-site disposal facility must address the pro-

cedures for screening incoming shipments of waste

to ensure that wastes received conform to the certi-

fication made by the generator or treatment facility.

That is, the waste analysis plan must address the

procedures necessary for determining whether an

extract of the waste or treated waste meets the

treatment standards.

51 Fed.Reg. at 40,598.'° In a sense, then, petitioners’

concerns are premature: while the EPA scheme is de-

® Petitioners apparently concede, contrary to intimations at oral

argument, that the substantive tests landfill operators are required

to conduct are adequate to identify hazardous components of the

waste they receive for disposal. As the agency points out, the

regulations require both treatment facilities and landfill operators

to use “the test method described in Appendix I of this part,” 40

C.F.R. §§ 268.7(b), 268.7(c) (referring to the “Toxicity Character-

istic Leaching Procedure”’)—a test that petitioners have called

“extremely stringent.” See Brief for Petitioners HWTC and

NRDC at 15. The focus of their challenge is apparently limited to

the allegedly inadequate frequency of testing.

10The preamble went on to discuss facilities where generation,

treatment and disposal all take place onsite, noting that “[lless

frequent testing may be appropriate when there are fewer and less

variable waste streams at combined facilities, but waste must be

tested if the composition or treatment method changes.” 51 Fed.

Reg. at 40,598. This passage permits an inference that the EPA is

ee on

Oe A RY AOE ae RUE te ee

33a

signed to assure adequate testing, which includes case-

by-case determinations of the frequency with which

actual testing will need to be conducted on waste ship-

ments, petitioners anticipate that the EPA will author-

ize testing schedules that are inadequate. We prefer to

anticipate that the agency will faithfully execute its

responsibilities under the statute, and will impose test-

ing requirements that will guarantee that Congress’

purposes in enacting the statute are implemented. If the

agency does not live up to this expectation, there will be

time and opportunity for petitioners’ challenge.

At its base, the challenge of HWTC and NRDC is

undergirded by a peculiar set of epistemological assump-

tions. In briefy these petitioners appear to argue that

only much more frequent testing of waste at every stage

of its handling would ever allow us to “know” whether

any given batch of waste (itself an arguably “arbitrary”

dividing line) conforms to the EPA’s treatment stand-

ards. Absent continuous testing at the point of genera-

tion, they argue, generators cannot certify what levels

of hazardous constituents their waste contains; and if

landfill operators are not required to test each individual

waste shipment for compliance with the treatment stand-

ards by the stringent “Toxicity Characteristic Leaching

Procedure” testing method, then the testing requirement

at the land disposal stage cannot be relied upon to catch

waste that generators have erroneously certified as fall-

ing naturally within these standards.

While we have no desire to enter a metaphysical de-

bate over the source and nature of all knowledge, com-

mon sense compels recognition of the fact that much of

what we think of as “knowledge” in the practical world

is nothing more than extrapolation from a more limited

set of experiences. As relevant to the present case, we

attuned to the need to require relatively more frequent testing

when waste streams coming into a land disposal facility are more

numerous and variable.

34a

cannot say that the statute requires testing beyond what

is practically necessary to assure with a high degree of

confidence that prohibited wastes are not being land

disposed. We therefore hold that the EPA’s decision to

allow generators to rely in appropriate circumstances on

their knowledge of their restricted waste to certify that

it naturally meets treatment standards is reasonable.

V. CONCLUSION

We conclude that the solvents and dioxins rule is not

arbitrary, capricious, or contrary to RCRA in any of

“ the respects argued by petitioners, but remand the mat-

ter for the EPA to clarify its reasons for adopting the

Final Rule in preference to the Proposed Rule. In order

to avoid disrupting EPA’s regulatory program, we will

withhold issuance of our mandate for 90 days, during

which the agency may either withdraw the Final Rule or

publish an adequate statement of basis and purpose.

Judgment Accordingly.

SILBERMAN, Circuit Judge, concurring in part and

concurring in the result:

I concur in all of the majority’s per curiam opinion

but its purported resolution of the Chevron “Step II”

question concerning the reasonableness of BDAT treat-

ment standards as a construction or application of

RCRA. While CMA’s “Step I” challenge to EPA’s con-

struction of RCRA section 3004(m)—i.e., whether the

statute “clearly forecloses” the approach charted by the

agency, Maj. op. 361-62—-was available for final judicial

review, I do not believe it proper for the court to have

reached the Step II question as to whether the selection

of BDAT treatment levels was “a reasonable policy

choice for tne agency to make.” Chevron U.S.A. Inc. v.

Natural Res. Defense Council, 467 U.S. 837, 845, 104

S.Ct. 2778, 2788, 81 L.Ed.2d 694 (1984). In the absence

of a valid agency explanation as to how it has attempted

35a

to accommodate the competing interests Congress has

committed to its care via RCRA, it is in my view inap-

propriate (perhaps analytically impossible) even to ad-

dress, much less resolve, CMA’s challenge to the reason-

ableness of EPA’s treatment regime under the statute.

Because the court today remands for further EPA ex-

planation of its adoption of BDAT standards, the ma-

jority’s Chevron Step II discussion should be considered

dict.

[ agree with the majority’s conclusion that Congress

did not have a “specific intention” that technology-based

treatment standards not be employed in implementation

of section 3004(m), see Chevron, 467 U.S. at 845, 104

S.Ct. at 2783, and to that extent I further agree that the

questions of statutory interpretation presented by CMA’s

petition are appropriately resolved under Step II of

Chevron. My reading of the critical statutory language

requiring EPA to set treatment standards so _ that

“threats to human heaith and the environment are mini-

mized” suggests a threshold ambiguity as to whether

Congress intended the agency, insofar as it was techno-

logically possible, to eliminate any statistically discerni-

ble risk to human health and the environment, or

whether Congress intended there to be some sort of ba!-

ancing. The dictionary definition of the word “mini-

mize,” see Maj. op. at 361, provides no ready answer to

this question; a command that the agency “reduce” a

threat ‘“‘to the smallest possible degree” leaves open the

factors that the agency can account for in determining

what is, in fact, possible (or feasible?) under the cir-

cumstances.

We are also in agreement over the significance that

EPA must attach to actual or reasonably perceived

“threats to human health and the environment” in the

course of fleshing out section 3004(m)’s meaning. As

the majority notes, EPA is not

36a

free . . . to require generators to treat their waste

beyond the point at which there is no ‘threat’ to

human health or the environment. That Congress’s

concern in adopting § 3004(m) was with health and

the environment would necessarily make it unrea-

sonable for EPA to promulgate treatment standards

wholly without regard to whether there might be a

threat to man or nature.

Maj. op. at 362. EPA is instead obliged to explain how

its selection of BDAT treatment standards—which, as

CMA notes, will require generators to treat certain

wastes to levels of purity beyond those EPA requires for

drinking water—is guided by RCRA’s concern with

health and environmental threats. But the majority per-

suasively demonstrates that EPA’s explanation in the

Final Rule falls woefully shy of this mark as a matter

of administrative law, leaving the court without any hint

whatsoever as to EPA’s theory of the compatibility of

the Final Rule with RCRA’s purposes. Under these cir-

cumstances, resolution of the statutory questions con-

fronting the court, at least those belonging to Step II of

Chevron, is an improper exercise of judicial creativity.

In order to conclude—as the majority does—that the

accommodation of competing RCRA policies reflected in

the agency’s treatment regulation is “one that Congress

would have sanctioned,” United States v. Shimer, 367

U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)

(quoted in Chevron, 467 U.S. at 845, 104 S.Ct. at 2783),

the court necessarily must determine that the approach

is “rational and consistent with the statute.” NLRB v.

United Food & Comm’l Workers U., 484 U.S. 112, 108

S.Ct. 418, 421, 98 L.Ed.2d° 429 (1987). This requires

a determination that the agency has fashioned its ap-

proach in reliance on considerations made relevant by

Congress under the substantive statute, which in turn

requires an examination of the agency’s stated reasons

for adopting the challenged course. See, e.g., AFL-CIO

;

{

]

37a

v. Brock, 835 F.2d 912, 917 (D.C.Cir.1987) (equating

Chevron’s second step with arbitrary and capricious re-

view of agency policies); NRDC v. EPA, 824 F.2d 1146,

1163 (D.C.Cir.1987) (striking down agency statutory

interpretation based on unreasonable “application of

[relevant statutory] factors”); see also Chevron, 467

U.S. at 848, 104 S.Ct. at 2782 (requiring affirmance of

administrative statutory construction if interpretation

is a “reasonable policy choice for the agency to make’’).

The critical inquiry, as such, in the court’s Chevron Step

II inquiry is “whether the agency has advanced what the

Chevron Court called ‘a reasonable explanation for its

conclusion that the regulations serve the . . . objectives

in question.’”’ Continental Air Lines v. Dep’t of Transp.,

843 F.2d 1444, 1452 (D.C.Cir.1988) (quoting Chevron,

467 U.S. at 863, 104 S.Ct. at 2791) (emphasis added).

EPA’s explanation in the instant case, however, is

utterly devoid of any rationale whatsoever for the

agency’s statutory construction or its policy choice. As

the court observes, EPA’s intentions in promulgating

treatment standard are “so shrouded in mist that for

this court to say that we could discern its outlines would

be as illogical as the agency’s explanation in the Final

Rule itself.” Maj. op. at 366. I would go further: I

think it doubtful that EPA attempted at all to explain

its presumptive view that the employment of BDAT

treatment standards across the board would reasonably

serve congressional intent. For after observing in the

Final Rule that the plain language and legislative history

of RCRA do not squarely preclude a technology-based

approach, EPA failed to indicate what statutory policies

tipped the balance in favor of that approach as opposed

to the initial health-screening levels announced in the

Proposed Rule. Before the court can determine that “the

agency’s answer is based on a permissible construction of

the statute,” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782,

the agency must explain how it has translated RCRA

into its treatment standards regulation.

38a

The majority’s Chevron Step II analysis itself con-

vincingly illustrates how important a role the agency’s

explanation of its policy accommodation plays in post-

Chevron federal judicial review of agency statutory in-

terpretation. Nowhere in its discussion does the majority

address the agency’s view of the way in which the BDAT

regime serves RCRA’s purposes; because the agency of-

fered no such view, this should not be surprising. This

part of the majority’s opinion is instead devoted exclu-

sively to the petitioner’s objection that, with respect to

certain solvents and dioxins, BDAT treatment levels will

result in treatment to “below established levels of haz-

ard.” See Maj. op. at 362. The majority responds to

CMA’s argument by pointing out that none of the “es-

tablished levels” to which CMA refers was developed un-

der a statutory standard requiring minimization of

“threats to human health and the environment.” But

EPA did not say that. We have before us no indication,

as the majority later observes, that EPA was driven

away from “established” health-screening levels on the

basis of the asserted incomparability of the statutory

standards under which those levels were determined.

Nor, as the majority later notes as well, see Maj. op. at

365-66, is there any indication that EPA was impelled

toward technology-based levels because of the “long-

term uncertainties associated with land disposal’ Con-

gress identified in RCRA. 42 U.S.C. § 6924(d) (1) (A).

The majority’s treatment of CMA’s—as opposed to EPA’s

—analysis at best suggests that CMA’s approach is not

compelled by the legislative text, a proposition relevant

only to Chevron’s first step.

Indeed, the majority’s discussion of the reasonableness

of EPA’s interpretation of the statute necessarily pro-

ceeds without reference to an agency interpretation be-

cause no such construction exists.’ One is left to wonder

1 The majority asserts, Maj. op. at 363 that the EPA, and not the

court, provided the basis for the interpretation found reasonable

CAMERA Sats aN ar een

ean hah Aaa RID by bes shtl lle EAE anaes 4 OT te

39a

how the majority can give deference to a statutory con-

struction (or an explanation as to how an agency inia-

tive is consistent with the statute) that nowhere appears

in the Final Rule. The majority’s Chevron Step II anal-

ysis, in my opinion, is nothing more than an advisory

opinion to the effect that were the court presented with a

Final Rule that echoed the majority’s discussion of an

appropriate balance to strike among RCRA’s purposes,

the court would sustain the agency’s view of the statute.

As a consequence, the majority ends up deferring not to

an agency statutory construction, but rather simply to

a result. Assuming this judicial approach ever were per-

missible, surely after Chevron it no longer is.

Given the complexity of the subject matter and the

fundamental ambiguity in Congress’ direction, a com-

plete agency explication of its view of the statute would

be especially helpful in this case. For instance, the ques-

tion of how (and why) Congress would have intended

EPA to require generators to treat the wastewaters they

intend to pour into the ground to levels more pure than

Congress requires for drinking water drawn out of the

ground would surely benefit from the views of those to

whom Congress entrusted regulatory responsibility. More

fundamentally, it is incumbent upon EPA to identify the

incremental “threats to human health and the environ-

ment” that it hopes to address by opting uniformly for

more stringent technology-based standards in lieu of

health-based standards of whatever origin. Cf. Small

Refined Lead Phase-Down Task Force v. EPA, 705 F.2d

here. But the “catalog of uncertainties” the majority refers to are

all found in the discussion accompanying the Proposed Rule, in the

Initial Rule document, and in briefs to this court—not in the Final

Rule and accompanying explanation. Of course, only the agency’s

explanation of its ultimate choice, not its prior musings nor, ordi-

narily, its post hoc explanations in court, see FLRA v. United States

Dep’t of the Treasury, 884 F.2d 1446 (D.C.Cir.1989) ; Women Jn-

velved in Farm Ecoomics v. United States Dep’t of Agriculture,

876 F.2d 994, 998-1000 (D.C.Cir.1989), are proper subjects of

judicial review.

40a

506, 523 (D.C.Cir. 1983) (“adverse health effects,” in

and of themselves, do not permit EPA “to justify any

. Standard at all, without explaining why it chose the

level it did’) ; United Steelworkers of America v. Marsh-

all, 647 F.2d 1189, 1207 (D.C.Cir.1980) (agency must

“explain the logic and the policies underlying any legis-

lative choice”), cert. denied, 453 U.S. 918, 101 S.Ct. 3148,

69 L.Ed.2d 997 (1981); Lead Indus. Ass’n v. EPA, 647

F.2d 1130, 1162 (D.C.Cir.) (choice between two policy

approaches must be explained), cert. denied, 449 U.S.

1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980); Industrial

U. Dep’t, AFL-CIO v, Hodgson, 499 F.2d 467, 476 (D.C.

Cir.1974) (“when [an administrator] is obliged to make

policy judgments . . ., he should so state and go on to

identify the considerations he found persuasive”). Only

then can the court legitimately defer to the agency’s con-

struction of RCRA, for proper judicial deference to an

agency interpretation requires an understanding of the

agency’s objectives that can only be gleaned from the

agency’s presentation of its rule. With all respect, the

majority’s analysis, however appealing, see Maj. op. at

362-64, cannot substitute for this obligatory agency

explanation.

I do not mean to ignore the conceptual distinction be-

tween review of an agency’s statutory construction and

of an agency’s actions under the arbitrary and capricious

standard. We have in the past said “[i]t would be in-

appropriate . . . to import wholesale [arbitrary and ca-

pricious review principles] and apply [them] in [the]

conceptually distinct arena” of statutory construction.

Continental Air Lines, Inc. v. Dep’t of Transp., 843 F.2d

1444, 1452 (D.C.Cir.1988). But at the same time we

have often recognized that Chevron’s second step and

review of an agency’s action under the arbitrary and

capricious standard, although starting from different

legal premises, often converge and sometimes overlap.

See, e.g., General Am. Transp. Corp. v. ICC, 872 F.2d

1048, 1053 (D.C.Cir.1989) ; AFL-CIO wv. Brock, 835 F.2d

4la

at 917; Natural Res. Defense Council v. EPA, 824 F.2d

at 1163; Rettig v. Pension Benefit Guaranty Corp., 744

F.2d 1388, 152 (D.C.Cir.1984). One thing, in any event,

is quite clear: these “distinct”? judicial review functions

proceed from a common foundation—the agency’s ex-

pressed view. Thus, if the agency has offered an inade-

quate explanation as to how its chosen policy is consist-

ent with Congress’ mandate, the court’s Chevron Step

II analysis is necessarily hypothetical.

It would appear that EPA faced with formidable po-

litical forces opposing its Proposed Rule, simply ac-

quiesced in the approach desired by those forces, but was

unwilling to offer as its own a statutory/policy rationale

to justify its acquiescence. In the Final Rule, EPA in

effeet stated that it recognized, and subordinated itself

to, the senators and congressmen who protested against

EPA’s Proposed Rule without in any way affirming the

legal (or policy} superiority of the legislators’ position.

My colleagues acknowledge EPA’s behavior is intolerable

as a matter of administrative law, see Meredith Corp. v.

FCC, 809 F.2d 863, 872-73 (D.C.Cir.1987) (holding that

FCC was obliged to address constitutional challenge to

fairness doctrine notwithstanding ‘“non-legislative ex-

pressions of congressional concern” that the question be

reserved for Congress); Sierra Club v. Costle, 657 F.2d

298, 404-10 (D.C.Cir.1981) (holding that EPA’s ex parte

exchanges with congressional leaders and White House

officials did not render informal rule procedurally infirm

since EPA set forth its own independent rationale for

the rule selected), but nevertheless “rescue” EPA from

its predicament by supplying the statutory ‘policy analy-

sis which, if it had been adopted by EPA, would have

obviated the need for a remand. Under the circum-

stances, I do not know why the court’s remand is other

than an empty gesture, one which conforms to principles

of judicial review of agency policymaking only in form.

42a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ee er

No. 86-1657

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent

and Consolidated Cases

Petitions for Review of a Rule of the

Environmental Protection Agency

Before: Wald, Chief Judge; Silberman and D. H. Gins-

burg, Circuit Judges

JUDGMENT

[Filed Mar. 14, 1990]

Upon consideration of this Court’s opinion of September

15, 1989, of respondent’s Notice of Compliance With

Court’s September 15, 1989 Decision as Modified and of

the statement attached thereto, filed February 12, 1990,

it is

ORDERED, by the Court, that the petitions for review

herein are dismissed, and it is

43a

FURTHER ORDERED, by the Court, that costs in the

amount of $741.00 are awarded to respondent and taxed

against petitioners, and it is

FURTHER ORDERED, by the Court, that the Clerk

is directed to issue of certified copy of this order to re-

spondent, in lieu of a formal mandate.

Per Curiam

FOR THF COURT:

CONSTANCE L. DUPRE,

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

44a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-1657

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent

and Consolidated Cases

Before: Wald, Chief Judge, Silberman and D. H. Gins-

burg, Circuit Judges

ORDER

[Filed Mar. 14, 1990]

It is ordered, by the Court, sua sponte, that the man-

date of the Court inadvertently issued on March 5, 1990,

be, and the same hereby is, recailed.

Per Curiam

FOR THE CouRT:

~~~ CONSTANCE L. DUPRE,

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

A ee Ri NT We IN

45a

APPENDIX C

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 264, 265, 268, 270, and 271

[SWH-FRL 3089-5]

Hazardous Waste Management

System; Land Disposal Restrictions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection Agency is

today promulgating its approach to implementing the

congressionally mandated prohibitions on the land dis-

posal of hazardous waste. This action is responsive to

amendments to the Resource Conservation and Recovery

Act (RCRA), enacted through the Hazardous and Solid

Waste Amendments of 1984 (HSWA).

Today’s notice establishes procedures for setting treat-

ment standards for hazardous wastes, for granting na-

tionwide variances from statutory effective dates, for

granting extensions of effective dates on a case-by-case

basis, for evaluating petitions for a variance from the

treatment standard, and for evaluating petitions demon-

strating that continued land disposal of hazardous wastes

is protective of human health and the environment.

In addition, EPA is promulgating specific treatment

standards and effective dates for hazardous wastes in-

cluded in the first phase of the land disposal prohibitions;

certain dioxin and solvent-containing hazardous wastes.

EPA also is promulgating the Toxicity Characteristic

Leaching Procedure (TCLP) for use in determining

whether these wastes meet the applicable treatment

46a

standards. Extensions of the effective date for certain

categories of these wastes are also promulgated in today’s

rule.

Prohibitions on underground injection of these wastes

are on a different schedule and are being addressed in a

different rulemaking. The treatment standards, how-

ever, will apply when the restrictions are effective.

DATE: This final rule is effective November 8, 1986,

except for the provisions in §§ 268.30(b) and 268.31(a),

which will become effective on November 8, 1988.

* * * *

C. Section 3004(m) Treatment Standards

As discussed earlier, the Agency proposed two major

approaches to setting treatment standards under section

3004(m). The first approach involved development of

treatment standards based on either technology- or risk-

based screening levels. The second approach was based

entirely on technology-based standards expressed as

BDAT. The Agency is promulgating the second approach

as the framework under which disposal of solvents, di-

oxins, and the scheduled wastes will be evaluated.

The risk-based methodology proposed by the Agency

considered the degree of hazard posed by wastes land

disposed in Subtitle C facilities. This led to the develop-

ment of “maximum acceptable contaminant concentra-

tions” (or sereening levels), which were based on the

recognition that the potential for harm to human health

and the environment will differ depending on the toxicity,

mobility, and persistence of the waste stream. This ap-

proach also recognized that. in some cases, any single

technology-based level may provide more protection than

is necessary, while in other cases, may provide insuffi-

cient safeguards for human health and the environment.

Moreover, under the proposed approach, relatively “low

hazard” wastes could be considered suitable for land dis-

posal without any treatment at all.

47a

Although a number of comments on the proposed rule

favored the first approach; that is, the use of screening

levels to “cap” treatment that can be achieved under

BDAT, several commenters, including eleven members of

Congress, argued strongly that this approach did not

fulfill the intent of the law. They asserted that because

of the scientific uncertainty inherent in risk-based deci-

sions, Congress expressly directed the Agency to set

treatment standards based on the capabilities of exist-

ing technology.

The Agency believes that the technology-based approach

adopted in today’s final rule, although not the only ap-

proach allowable under the law, best responds to the

above-stated comments. Accordingly, the final rule estab-

lishes treatment standards under RCRA section 3004 (m)

based exclusively on levels achievable by BDAT. The

Agency believes that the treatment standards will ge1-

erally be protective of human health and the environ-

ment. Levels less stringent than BDAT may also be

protective.

The plain language of the statute does not compel the

Agency to set treatment standards based exclusively on

the capabilities of existing technology. RCRA section

3004(m) requires EPA to “promulgate regulations spec-

ifying those levels or methods of treatment, if any, which

substantially diminish the toxicity of the waste or sub-

stantially reduce the likelihood of migration of hazardous

constituents from the waste so that short-term and long-

term threats to human health and the environment are

minimized” (42 U.S.C. 6924(m)). By calling for stand-

ards that minimize threats to human health and the

environment, the statute clearly allows for the kind of

risk-based standard originally proposed by the Agency.

However, the plain language of the statute does not pre-

clude a technology-based approach. This is made clear by

the legislative history accompanying the introduction of

the final section 3004(m) language. The legislative his-

48a

tory provides that “[T]he requisite levels of [sic] meth-

ods of treatment established by the Agency should be

the best that has been demonstrated to be achievable”

and that “[T]he intent here is to require utilization of

available technology in lieu of continued land disposal

without prior treatment” (Vol. 130, Cong. Rec. 9178,

(daily ed., July 25, 1984)). Thus, EPA is acting within

the authority vested by the statute in selecting to promul-

gate a final regulation using its proposed alternative

approach of setting treatment standards based on BDAT.

The Agency believes that its major purpose in adopt-

ing the risk-based approach of the proposal (i.e., to allow

different standards for relatively low-risk, low-hazard

wastes) may be better addressed through changes in

other aspects of its regulatory program. For example,

EPA is considering the use of its risk-based methodologies

to characterize wastes as hazardous pursuant to section

3001.

* * * *

49a

APPENDIX D

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 264, 265, 268, 270 and 271

[SWH-FRL 2927-3]

Hazardous Waste Management System:

Land Disposal Restrictions

AGENCY: Environmental Protection Agency [EPA].

ACTION: Proposed rule.

SUMMARY: The Environmental Protection Agency is

today proposing a framework for a regulatory program

to implement the congressionalkyx—mandated land disposal

prohibitions. These actions are responsive to amend-

ments to the Resource Conservation and Recovery Act

(RCRA), enacted through the Hazardous and Solid

Waste Amendments of 1984 HSWAs) on November 8,

1984.

This action proposes procedures to establish treatment

standards for hazardous wastes, to grant nationwide

variances from statutory effective dates, to grant exten-

sions of effective dates on a case-by-case basis, and pro-

cedures by which EPA will evaluate petitions demon-

strating that continued land disposal is protective of

human health and the environment.

In addition, FPA is proposing treatment standards

and effective dates for the first classes of hazardous

wastes to be evaluated under this framework: Certain

dioxin-containing hazardous waste and soivent-containing

hazardous waste.

This proposal establishes the framework under which

all hazardous wastes will be evaluated in accordance with

50a

the schedule (when issued as a final rule) that was pro-

posed, as published in the Federal Register of May 31,

1985 (50 FR 23250) and prohibits land disposal of cer-

tain dioxin- or solvent-containing wastes unless the treat-

ment standards are achieved. The framework and treat-

ment standards being proposed today do not apply to the

disposal of hazardous wastes in underground injection

wells.

DATES: Comments on this proposed rule should be sub-

mitted on or before March 17, 1986.

II. Summary of Today’s Proposal

EPA today is proposing and requesting public com-

ment on a framework for a regulatory program to im-

plement the land disposai prohibitions mandated by

Congress under section 3004 (d), (e), and (g). EPA

is also proposing the section 3004(m) treatment stand-

ard and associated effective dates for two classes of haz-

ardous wastes: Solvent wastes and dioxin-containing

wastes addressed by section 3004(e). (Unless otherwise

specifically noted or contextually obvious, “treatment

standards” in this preamble refers to RCRA section 3004

(m) standards.) EPA used the decision-making frame-

work described in today’s proposal to develop these initial

sets of proposed treatment standards and associated ef-

fective dates. The Agency hopes that its simultaneous

proposal of the land disposal restrictions program frame-

work and the initial treatment standards derived there-

from will assist the public in understanding the pro-

gram’s mechanics and its environmental and economic

impacts, and serve to focus public comment. It may be

desirable in the final rule, however, to separate the

decision-making framework from the standards for

solvent- and dioxin-containing wastes and issue them as

two separate rulemakings.

This unit of the preamble provides a brief summary

of the major program components and describes how

they are integrated into a regulatory framework. Unit

halle aisle ABLP

5la

III, following, describes individually, and in greater de-

tail, the development and implementation of each of these

components, including descriptions of the various models

used by EPA in implementing the program. Detailed

mathematical descriptions of these models are provided

in this preamble and in background documents available

for public examination in the RCRA docket (see AD-

DRESSES). The proposed treatment standards and as-

sociated effective dates derived from this regulatory

framework for the initial two classes of hazardous

wastes are then presented in Units V and VI.

A. Statutory Prohibitions on Land Disposal and Section

3004(m) Treatment Standards

Section 3004 (d), (e), and (g) automatically prohibits

continued land disposal of all listed hazardous wastes

beyond specified dates. Each of these subsections, how-

ever, provides exceptions to the prohibitions for wastes

and treatment residuals that comply with standards to

be promulgated by EPA under section 3004(m). Section

3004(m) requires EPA to “promulgate regulations

specifying those levels or methods of treatment, if any,

which substantially diminish the toxicity of the waste,

or substantially reduce the likelihood of migration of

hazardous constituents from the waste so that long-term

and short-term threats to human health and the environ-

ment are minimized.”

In addition to providing exceptions for wastes that

comply with the treatment standards, section 3004 (d),

(e), and (g) also allows the Administrator to determine

that the statutory prohibition on one or more methods of

land disposal is “not required in order to protect human

health and the environment for as long as the waste

remains hazardous.” However, the Administrator is pre-

cluded from determining that a method of land disposal

is protective “unless, upon application by an interested

person, it has been demonstrated to the Administrator,

to a reasonable degree of certainty, that there will be no

52a

migration of hazardous constituents from the disposal

unit or injection zone for as long as the wastes remain

hazardous.”

Accordingly, EPA has two primary responsibilities

under this statutery scheme:

1. To promulgate exceptions to the statutory prohibi-

tions, in the form of treatment standards ensuring that

the long-term and short-term threats to human health

and the environment arising from continued land dis-

posal are minimized.

2. To grant exemptions from the statutory prohibi-

tions, through approval of petitions successfully demon-

strating that continued land disposal of specific hazard-

ous wastes is protective of human health and the environ-

ment.

The Agency also is responsible for establishing vari-

ances from and extensions to the statutory effective dates

for the land disposal prohibitions, as well as for the im-

plementation of statutory prohibitions on the storage of

wastes that are prohibited from land disposal.

Before presenting and describing the entire regulatory

and decision-making framework being proposed today,

it is necessary to discuss in greater detail one of its cen-

tral aspects: the establishment of treatment standards.

As the following discussion explains, EPA will determine

both technology-based levels and screening levels as inter-

mediate steps in establishing a section 3004(m) treat-

ment standard.

The objective of the treatment standards is to mini-

mize the threats to ground water (due to leaching), air

(due to emissions), and surface waters (due to leaching)

associated with land disposal of hazardous wastes by sub-

stantially reducing the toxicity and/or mobility of such

wastes prior to placement in land disposal units. The

statute specifies that such standards may take the form

)

53a

of prescribed levels or methods of treatment. Treatment

standards therefore, may take the form of performance

standards governing the nature of quality of wastes or

treatment residuals that may be placed in land disposal

units. Such performance standards may be expressed as

maximum acceptable concentration levels for individual

chemical constituents in extracts from wastes (e.g.,

maximum leachate concentrations), or in the wastes

themselves (e.g., maximum waste concentrations). The

statute indicates that treatment standard also may take

the form of specified treatment methods or treament

chains that must be applied to wastes prior to place-

ment in land disposal units (e.g., incineration of organ-

ics; stabilization of metals; precipitation of metals from

waste water streams, followed by fixation of precipitate

sludges, etc.). The Agency prefers, however, to express

treatment standards as performance standards wherever

possible because such standards provide greater flexibil-

ity to the regulated community in developing and imple-

menting compliance strategies.

Section 3004(m) specifies that treatment standards

must “minimize” long- and short-term threats to human

health and the environment arising from land disposal of

hazardous wastes.

Congress indicated in the legislative history accom-

panying the HSWAs that “(t]he requisite levels of [sic]

methods of treatment established by the Agency should

be the best that has been demonstrated to be achievable’,

noting that the intent is “to require utilization of avail-

able technology” and not a “BAT-type process which

contemplates technology-forcing standards.” (Vol. 130

Cong. Rec. $9178 (daily ed., July 25, 1984).) EPA in-

terprets this legislative history to suggest that Congress

considered the “minimize” standards to be met by appli-

cation of this best demonstrated achievable (or avail-

able) technology (BDAT) prior to placement of wastes

or treatment residuals into land disposal units. In devel-

54a

oping technology-based levels, treatment processes are

evaluated based upon the performance of their residuals

in the land disposal environment. .

Congress acknowledged that current technologies may

be incapable of completely eliminating threats arising

from the land disposal of certain types of hazardous

wastes. The legislative history notes, for example, that

“for certain wastes, such as metals and inorganics, there

are no practical treatment technologies at this time that

permanently eliminate their toxicity.” The legislative

history specifically suggests that state-of-the-art stabili-

zation techniques would meet the section 3004(m) “mini-

mization” requirements for such wastes, even though

such techniques are acknowledged to be less than com-

pletely effective in reducing long-term mobility of haz-

ardous constituents.

However, the Agency does not believe that Congress

intended all state-of-the-art technology to be deemed ap-

propriate treatment, regardless of its level of perform-

ance. In noting that_the Administrator shall specify

“those levels or methods of treatment, if any, which

substantially diminish the toxicity of the waste or sub-

stantially reduce the likelihood of migration of hazardous

constituents from the waste,’ Congress clearly implies

that a minimum performance standard, in the form of

“substantial” reductions in toxicity and/or mobility,

must be achieved under the section 3004(m) treatment

standards.

EPA is concerned that some treatment technologies,

when applied to particular waste streams, may result in

significant releases of hazardous constituents to the en-

vironment in the process of achieving “substantial” re-

ductions in the waste’s toxicity or mobility prior to land

disposal. Depending upon their nature and magnitude,

the total risks associated with these releases may in fact

be greater than the risks associated with land disposal

of the waste. Therefore, to ensure that total human

55a

health and environmental risks are not increased as a

result of EPA’s implementation of the statutory land dis-

posal prohibitions, the Agency will conduct risk assess-

ments to compare the risks of managing wastes in land

disposal units with the risks of managing wastes in

alternative treatment technologies, including any sub-

sequent land disposal of treatment residuals. Treatment

technologies that are found through these comparative

risk assessments to pose greater total risks than those

posed by direct land disposal of the waste will be classi-

fied as “unavailable” for purposes of establishing the sec-

tion 3004(m) treatment standard for that waste.

These comparative risk assessments, described in

greater detail in Unit III.C, are not explicitly required

under RCRA. The Agency believes, however, that Con-

gress did not intend risks to human health and the en-

vironment to be increased in prohibiting the continued

land disposal of hazardous wastes. EPA believes that it

is desirable, reasunable, and consistent with the intent

of Congress to include comparative risk assessments to

classify as “unavailable” for purposes of establishing

treatment standards those waste/treatment technology

combinations that pose greater total risks to human

health and the environment than those posed by direct

land disposal of the waste. However, the statute does

not allow a determination that one or more alternative

treatment technologies pose greater risks than land dis-

posal of the waste should not be used as a basis for

allowing continued land disposal of the waste. Rather,

when these comparative risk assessments identify spe-

cific, unacceptable risks for an alternate treatment tech-

nology or treatment train, EPA will endeavor to reduce

these risks through development and promulgation of

additional standards (e.g., air emissions controls). Un-

fortunately, these additional standards may not be devel-

oped by the time the restrictions take effect, thus, re-

quiring that technologies posing risks greater than land

disposal be considered “unavailable” for purposes of es-

56a

tablishing BDAT Levels. As a result, the universe of

candidate technologies for BDAT may be more limited.

In addition, since technologies ruled out because of risk

may be more efficient than other candidate technologies,

the remaining technologies on which the BDAT treat-

ment standard is based may allow greater concentrations

of hazardous constituents in the residuals going to land

disposal.

The Agency may also prohibit the use of technologies

found to be riskier than land disposal. However, these

prohibitions may not be effective prior to the effective

date of ban restrictions. In cases where additional stand-

ards or prohibitions for riskier technologies are not

promulgated prior to a restriction effective date, such

technologies may be used to meet concentration levels set

under section 3004(m) even though these technologies

did not form the bases for selecting such levels. In an

effort to avoid this result, EPA will attempt to regulate

riskier technologies prior to the ban effective date when-

ever possible.

In addition to developing technology-based levels, EPA

will invoke the authority of section 3004(m) to establish

screening levels. A screening level will be developed for

each individual hazardous constituent and will identify

the maximum concentration below which the Agency

believes there is no regulatory concern for the land dis-

posal program and which is protective of human health

and the environment. The methodology used in establish-

ing these levels is described in detail in Unit III. These

screening levels will serve three major functions.

First, the screening level, or concentration level, will

be used to avoid “excessive” treatment. In some cases,

available technologies may be capable of achieving

greater reductions in toxicity and/or constituent mobility

than are actually necessary to provide protection of

human health and the environment in subsequent land

disposal of hazardous wastes. The Agency does not be-

57a

lieve that Congress intended that EPA promulgate

standards requiring treatment for treatment’s sake (i.e.,

requiring more treatment than necessary to protect

human health and the environment). Accordingly, in

order to avoid setting treatment standards that require

excessive treatment prior to land disposal, EPA in some

cases will employ the screening levels thresholds to “cap”

the reductions in toxicity and/or mobility that otherwise

would result from the application of BDAT treatment,

even though the efficiencies of available technv!ogies may

be capable of achieving more stringent levels (i.e., the

levels will provide an upper limit on the stringency of

the treatment standard). In the situation described

above, the écreening level would become the regulatory

treatment standard since there would be no need, from

environmental or human health perspectives, to set a

more stringent standard.

Second, in some cases, while the application of BDAT

will result in substantial reductions in toxicity and mo-

bility, available technologies may not be able to achieve

concentration levels that provide full protection of human

health (i.e., the screening levels). Although che statute

specifies that compliance with technology-based standards

is legally sufficient in such a situation, the Agency be-

lieves that the screening levels should function as a goal

for future changes to the treatment standards as new

and more efficient treatment technologies become avail-

able. In this second situation, the screening levels iden-

tify constituent concentrations that are desired in land

disposal in the long term, but which are not actually

required in the short term due to limitations in techno-

logical capacities.

Finally, in certain circumstances, EPA may conclude

that no candidate treatment technologies provide the

“substantial” reductions in toxicity or mobility required

under section 3004(m); or, that all candidate treatment

technologies pose greater total risks than land disposal.

58a

Accordingly, the Agency would determine that there are

no treatment technologies “available” upon which to base

the treatment standard, because even the best demon-

strated treatment ‘echno‘ogies do not provide sufficient

safeguards against the threats posed by land disposal or

because application of treatment technologies would in-

crease overall risks to human health and the environ-

ment. In such cases, the screening level will become the

treatment standard, providing at least for land disposal

of wastes containing constituents at concentrations deter-

mined to be protective of human health and the environ-

ment.

The development and use of these screening levels is

not required explicitly under any of the amendments to

section 3004 enacted through the HSWAs. EPA believes,

however, that the development and application of such

standards is reasonable and desirable from both environ-

mental and economic perspectives. Economically, inc'u-

sion of these protective caps ensures that limited re-

sources (natural resources as well as financial resources)

are not expended needlessly in meeting treatment stand-

ards in excess of what is required to protect human

health and the environment in the land disposal of haz-

ardous wastes. In addition, since the screening ievel

standard functions effectively as an alternative to the

petition process (i.e., constituents that meet the screen-

ing levels naturally are exempted from treatment with-

out going through the petition process) the Agency ex-

pects to realize internal savings by minimizing the costly

and admir’. vatively burdensome petition review process.

From an environmental perspective, EPA’s efforts in

developing the screening levels will identify those situa-

tions where even BDAT treatment cannot achieve pro-

tection of human health and the environment, and will

provide goals in such cases for future technology devel-

opment. Finally, EPA believes it is desirable to employ

the screening levels as the treatment standards in cases

where no treatment standard would otherwise be estab-

59a

lished (e.g., in cases where all treatment technologies are

riskier than land disposal or when even the best demon-

strated treatment technology does not provide substan-

tial reductions in toxicity or mobility). If no treatment

standard is promulgated for a waste, the waste and all

residuals from treatment of the waste are completely

prohibited from land disposal (unless, of course, EPA

approves petitions for continued land disposal or appli-

cations for effective date extensions). By employing the

levels as treatment standards in such cases, EPA avcids

forcing all those seeking continued land disposal to sub-

mit petitions. Instead, those forms of waste (e.g., con-

taminated soils resulting from spills or cleanup actions

under CERCLA; waste waters containing small concen-

trations of hazardous constituents; etc.) that meet the

screening level constituent concentration levels may con-

tinue to be disposed of in or on the land because such

disposal will not harm human health or the environment.

The relationship of the technology-based standards and

the screening levels can be summarized briefly as follows.

If application of BDAT treatment results in concentra-

tion levels equal to or more stringent than the screening

levels, then the Agency will issue the screening level as

the treatment standard, capping off required BDAT

treatment at these protection levels. If application of

BDAT treatment results in levels that are less stringent

than the screening level, but BDAT does realize sub-

stantial reductions in toxicity or mobility and does not

pose greater risks than land disposal, then the technol-

ogy-based level becomes the treatment standard and the

screening level remains as a goal that may be reached

as new technologies emerge. If no technologies exist that

result in substantial reductions in toxicity or mobility or

if all treatment technologies pose greater risks than land

disposal, then EPA will not be able to specify a technol-

ogy-based level and the screening level becomes the treat-

ment standard.

60a

It is important to note that any waste naturally meet-

ing the treatment levels (i.e., without actually under-

going treatment) would be, under the proposed approach,

exempted from the ban. There would appear to be little

rationale for allowing a waste treated to those levels to

be exempted from the ban, while not exempting a waste

that naturally contains acceptable levels so that treat-

ment is not required to comply with the standard. More-

over, the language of section 3004(m) appears to sup-

port this conclusion. Section 3004(m) directs EPA to

specify “those levels or methods of treatment, if any,”

required to substantially diminish toxicity or reduce mo-

bility. The “if any” clause indicates that EPA may

identify cases where no treatment is required to meet

the standard; i.e., cases in which the standard can be

met without application of technology. Accordingly,

EPA is proposing to exempt from the land disposal pro-

hibitions any waste treated to meet the applicable section

3004(m) standard, or meeting such standard without

treatment.

In summary, in setting the effective concentration

limits that govern the quality of land disposed wastes, the

Agency will consider a set of relevant factors. The

screening level is based on individual risk—the first

factor. The strength of evidence for carcinogenicity is

part of the individual risk assessment (see Unit III. A.

1. e). The performance of treatment technologies, alone

and in relation to the screening levels has major influ-

ence on the chosen effective concentration limits. For

example, when a treatment substantially reduces the con-

centration of a constituent in a waste, but does not at-

tain the screening level the treatment performance will

become the effective control level. Population risk will

be added as a factor if the Agency can develop a method

of using available population data. A possible approach

is described in unit III. A. 1. i.

The Agency believes that the development of nationally

applicable screening levels best implements its stated ob-

6la

jectives of capping off necessary treatment, providing a

goal for the development of emerging technologies and

future treatment standards, and providing a concentra-

tion-based standard under section 3004(m) in cases

where a technology-based treatment level is not devel-

oped. In general, however, the same objectives could be

realized in the absence of national screening levels. Ac-

cordingly, EPA may consider two alternative approaches.

The first alternative does not provide for the develop-

ment of screening levels but instead relies entirely on

technology-based treatment section standards and the

petition process. Under a regulatory framework that

provided only for the development of technology-based

(BDAT) treatment standards (as opposed to screening

levels and technology-based standards), the petition

process could serve to “cap off” the required level of

treatment so as to avoid treatment for treatment’s sake.

Under this approach, if a prescribed level or method of

treatment under section 3004(m) resulted in concentra-

tion levels that an owner/operator believed to be overly

protective, the owner/operator could petition the Agency

to allow the use of an alternative treatment level or

method or no treatment at all by demonstrating that less

treatment would still meet the petition standard of »ro-

tecting human health and the environment.

A second major function of the national screening level

is to provide a section 3004(m) standard in cases where

EPA is unable to develop a technology-based standard

because BDAT has not been identified. As noted earlier,

the benefit of this approach is that instead of banning a

waste outright because there is no technology available

to treat to acceptable levels, a waste may still be land

disposed if it can- meet the protective screening level

naturally. However, this same function could be fulfilled

by the petition process. Under the above scenario, if

EPA fails to issue a treatment standard under section

3004(m), an owner/operator could still petition the

62a

Agency under § 268.5 to allow continued land disposal of

the waste upon a demonstration that land disposal of the

waste would not result in harm to human health and the

environment. :

There is no need to develop regulatory screening levels

to meet the last major function of such nationally ap-

plicable levels i.e., the development of hazardous con-

stituent concentration goals towards which emerging

technologies can strive. This gval could be met by the

development of screening levels in a _ non-regulatory

context.

The major drawback of this first alternative however,

is that it would increase the number of petitions received

by the Agency. Pending determinations on individual

petitions, wastes will be restricted from land disposal.

The Agency is also considering a second alternative to

the approach outlined today. As noted in earlier discus-

sions, EPA believes that it has authority under section

3004(m) to give screening levels regulatory effect in two

situations. First, in cases where technology is capable of

meeting or exceeding the screening level this protective

concentration level becomes the regulatory standard

under section 3004(m), effectively “capping off” the ap-

plication of technology to avoid treatment in excess of

that needed to protect human health and the environ-

ment. Second, the screening level also will have regula-

tory effect in cases where all candidate technologies are

riskier than land disposal or where EPA is unable to

identify a technology that substantially reduces the tox-

icity and diminishes the mobility of a constituent. In

such cases, the screening level essentially becomes the

section 3004(m) standard by default, i.e., because no

acceptable technology has been identified upon which to

base a treatment standard.

This second alternative approach would base the treat-

ment standards established under section 3004(m) only

68a

on levels capable of being achieved by the application of

LDAT technology. Under such an approach EPA would

continue to use screening levels to cap off the use of

technology, but would not establish the screening level

as the treatment standard when no acceptable technology

has been identified. If EPA were unable to identify a

technology that substantially reduces the toxicity and

mobility of hazardous constituents or if all technologies

are riskier than land disposal, then the Agency would

not set a section 3004(m) standard. In such a case, a

waste banned from land disposal could be disposed of in

land only if it is the subject of a successful petition

demonstration under section 3004 (d), (e), or (g).

The petition demonstration requires a showing that

the hazardous constituents in a waste will not migrate

to a point of potential human or environmental! exposure

in concentrations that will harm human health or the

environment (see Unit III.G). As discussed in Unit

III.A, the screening model will identify a maximum pro-

tective concentration level for each hazardous constitu-

ent. Accordingly, under this approach if a _ petitioner

could show that all of the hazardous constituents in his

waste are at concentrations equal to or less than the

concentration established by the screening model, EPA

may determine that land disposal of such a waste is

protective. With this approach, the Agency could develop

a simplified petition process to address such cases. The

simplified petition would consist of a petitioner’s certifi-

cation, with supporting analytical data, that all hazard-

ous constituents in the waste meet applicable screening

levels.

EPA solicits public comment on its approach to devel-

oping treatment standards. The Agency is particularly

interested in the public’s views on the desirability of

developing s¢reening levels in addition to technology-

based standards. In addition, EPA would welcome infor-

mation indicating which wastes (and what physical

64a

states and what quantities) could be expected to meet the

screening levels proposed today without treatment. To

what extent does the regulated community believe that

it will rely on compliance with screening levels to exclude

waste from the restrictions in lieu of petitioning for an

exclusion? (screening levels for certain solvents are iden-

tified in unit V.) The screening levels ensure protection

of human health and the environment considering all

significant routes of exposure. How will the establish-

ment of these safe levels for all hazardous constituents

affect cther programs administered by EPA or other

agencies?

Under certain circumstances, anticipated by EPA to

occur extremely infrequently or not at all, the Agency

may decide not to establish any treatment standard

under section 3004(m). This situation would arise in

cases where EPA has determined that all applicable

treatment standard for a hazardous waste (either due

to their failure to achieve “substantial” reductions in

the waste’s toxicity or mobility, or due to EPA’s deter-

mination that they pose greater risks than those posed

by land disposal) and where the Agency is unable to

develop screening levels. Since the screening levels iden-

tify levels at which land disposal may be determined to

be protective of human health and the environment, the

Agency would not be able to establish them if, for ex-

ample, critical data elements upon which calculation of

these levels depends are absent or are of insufficient

quality. In such a case, EPA will promulgate regula-

tions that certify the statutory prohibition. Generators

or facility owners or operators desiring to continue man-

aging the waste in land disposal units will be required,

in such cases, to submit petitions to EPA demonstrating

such management to be “protective” of human health

and the environment at specific facilities, as discussed

in greater detail in subsequent units of this preamble.

65a

APPENDIX E

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 264, 265, 268, 270 and 271

; [SWH-FRI-3725-8 ]

Hazardous Waste Management

System: Land Disposal Restrictions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Response to court remand.

SUMMARY: On November 7, 1986, EPA promulgated

the first set of land disposal restriction regulations, in-

cluding treatment standards based on

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