Petition for Writ of Certiorari — Chemical Manufacturers Ass'n v. Environmental Protection Agency

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Supreme Court, U.S,

FILED

92-1150

| JAN 5 1993

No. 92—— ' | OFFICE OF THE CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

CHEMICAL MANUFACTURERS ASSOCIATION and

AMERICAN PETROLEUM INSTITUTE, PETITIONERS

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID F. ZOLL MICHAEL W. STEINBERG *

RONALD A. SHIPLEY PETER BUSCEMI

CHEMICAL MANUFACTURERS HUNTER L. PRILLAMAN

ASSOCIATION MORGAN, LEWIS & BOCKIUS

2501 M Street, N.W. 1800 M Street, N.W.

Washington, D.C. 20037 Washington, D.C. 20036

(202) 887-1160 (202) 467-7141

G. WILLIAM FRICK

RALPH J. COLLELI, JR.

AMERICAN PETROLEUM

INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8252

January 5, 1993 * Counsel of Record

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

QUESTIONS PRESENTED

1. Whether the court of appeals improperly failed to

defer to EPA’s interpretation of Section 3004 of the

Resource Conservation and Recovery Act (“RCRA”) and

improperly required EPA to regulate under RCRA bil-

lions of gallons per year of dilute wastewater that is

already extensively regulated by EPA under the Clean

Water Act and the Safe Drinking Water Act.

2. Whether the court of appeals improperly failed to

defer to EPA’s interpretation of Section 1006 of RCRA

and improperly rejected EPA’s decision to integrate the

overlapping requirements of RCRA, the Clean Water

Act, and the Safe Drinking Water Act in order to avoid

massive disruption at thousands of industrial plants

throughout the United States.

LIST OF INTERESTED PARTIES

The parties to the proceeding below were the Chemical

Manufacturers Association, American Petroleum Insti-

tute, The Fertilizer Institute, RSR Corporation, Ameri-

can Iron and Steel Institute, American Mining Congress,

American Paper Institute, National Forest Products Asso-

ciation, Specialty Steel Industry of the United States,

Chemical Waste Management, Inc., Edison Electric In-

stitute, The Dow Chemical Company, Zine Corporation

of America, Horsehead Resource Development Co., Exide

Corporation, The Aluminum Association, Natural Re-

sources Defense Council, Environmental Defense Fund,

Hazardous Waste Treatment Council, Sierra Club, E.I.

du Pont de Nemours & Co., Inc., The Chlorine Institute,

National Association of Metal Finishers, Secondary Lead

Smelters Association, Allied-Signal Inc., Lead Industries

Association, Inc., The Cadmium Council, Inc., Institute

of Makers of Explosives, Thiokol Corp., Olin Corp., Steel

Manufacturers Association, the United States Environ-

mental Protection Agency, and William K. Reilly, the

Administrator of the Environmental Protection Agency.

Petitioner Chemical Manufacturers Association

(“CMA”) is a nonprofit trade association whose member

companies represent more than 90 percent of the pro-

ductive capacity for basic industrial chemicals within the

United States. CMA does not have any outstanding

securities in the hands of the public, nor does CMA have

a publicly owned parent, subsidiary, or affiliate.

Petitioner American Petroleum Institute (“API’’) is

a nationwide, not-for-profit trade association representing

companies engaged in all aspects of the petroleum indus-

try, including exploration, production, refining, trans-

portation, and marketing. API does not have any out-

standing securities in the hands of the public, nor does

API have a publicly owned parent, subsidiary, or affiliate.

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............----------------- ence

LIST OF INTERESTED PARTIES ...... bills nomena

TABLE OF AUTHORITIES .................-..-------- saaniineieisic

OPINION BELOW ................. sii shainiieapieesioserasenauieinengsaaeabins

JURISDICTION ............ See Cedi tatnadlaeediaacdiabiboniabunakkinanenoeies

STATUTE AND REGULATIONS INVOLVED

STATEMENT OF THE CASE ...................--.

Eptroauction ...................... RR

Statutory and Regulatory Background _....

The Final Rule Adopted by EPA ..........................-------.

Description of CWA Treatment Systems and SDWA

Injection Wells —........

EPA’s Findings on Aggregation of Characteristic

Wastes

The Decision of the Court of Appeals ............

REASONS FOR GRANTING THE PETITION

I. THE COURT OF APPEALS FAILED TO FOL-

LOW FUNDAMENTAL PRINCIPLES OF

STATUTORY CONSTRUCTION AND DEF-

ERENCE TO AGENCY INTERPRETATIONS.

A. The Court’s Interpretation of RCRA § 3004..

B. The Court’s Interpretation of RCRA § 1006

ee ss cccasueenhswuexctondebakans

Il. THE COURT OF APPEALS IMPROPERLY

DICTATED THE REGULATIONS THAT EPA

MUST DEVELOP ON REMAND

(iii)

TABLE OF CONTENTS—Continued

lil. THE DISRUPTION WROUGHT BY THE

COURT OF APPEALS WILL BE WIDE-

SPREAD, LONG-LASTING, AND ENOR-

MOUSLY EXPENSIVE

A. Disruption of Clean Water Act Treatment

Practices

B. Disruption Of SDWA Injection Well Prac-

RE, AEE aL AES:

CONCLUSION

APPENDIX A

Opinion of the Court of Appeals

APPENDIX B

Order of the Court of Appeals Granting Stay

APPENDIX C

Order of the Court of Appeals Vacating Stay

Order ..... i eiannbadininis eehieiscerk Caen pedeipes emit waacchancorciooers

APPENDIX D

Second Order of the Court of Appeals Granting

era er ee

APPENDIX E

Relevant Statutory Provisions ___.

APPENDIX F

Relevant Portions of Final Rule Involved

Page

79a

80a

8la

82a

92a

TABLE OF AUTHORITIES

Cases Page

Barker v. Wingo, 407 U.S. 514 (1972) ~..--.------------- 24

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) .... _ passim

Comite Pro Rescate de la Salud v. Puerto Rico

Aqueduct & Sewer Authority, 888 F.2d 180 (ist

Cir. 1989), cert. denied, 494 U.S. 1029 (1990)... 22

Department of the Treasury v. Federal Labor Re-

lations Authority, 494 U.S. 922 (1990) ~.........----- 24

Fort Stewart Schools v. Federal Labor Relations

Authority, 495 U.S. 641, (1990) ee ee 19

Hyatt v. Sullivan, 899 F.2d 329 (4th Cir. 1990) .. 24

Mistretta v. United States, 488 U.S. 361 (1989) .... 24

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 ( 1978) 24

White House Vigil for the ERA Committee v.

Clark, 746 F.2d 1518 (D.C. Cir. | eee 24

Statutes

28 U.S.C. § 1254 (1) .......-------0---eeee--2022- 2

33 U.S.C. §§ 1251-1387 ........----------------eeeec eset 3

$3 U.S.C. § 1042 ........ een kev eee g

42 U.S.C. §§ 300f-800j-26 7 ne ee 3

Resource Conservation and tecovery Act

(“RCRA”), 42 U.S.C. § 6901 et seq. _.. 2

42 U.S.C. § 69038 5, 6

42 U.S.C. § 6905 . __....2, 4, 11, 14, 15, 16, 18, 21

P. ¥es Coa fj reer ns rete . £8

42 U.S.C. §§ 6922 (a) , 6923 (a)-(b), and 6924 (a) 4

rate Cee o | Seer Le

42 U.S.C. § 6924 (g) ; a 4, 5, 9, 20

Po Bie Some el) 3 eer 20

42 U.S.C. § 6924 (m) . 5,7,9,19

42 U.S.C. § 6925 (a) -(@) ...----------------ceeeeeeeceecceeeeeeeeee 4

Peis Com ES nenemenceres 17

Pub. L. No. 89-272, Title II, 79 Stat. 992 3

Pub. L. No. 94-580, 90 Stat. 2795 ... 3

Pub. L. No. 98-616, 98 Stat. 3221 ............. Sh eee 4

Regulatory Materials

40 C.F.R. §§ 148.20, 268.6 en M5 ae 14

40 C.F.R. §§ 261.3 (a) (2) (i), 261.20-261.2

TABLE OF AUTHORITIES—Continued

Page

40 C.F.R. §§ 261.3 (a) (2) (11), 261.31-261.33 00000... 5

Be i is A ED a chesenaxucnveekecbuscneidectccneetetniacen micas 5, 6

Be eae cine Oe CA IEE ED vices ctcnecennnchacnncasunacinsninseaaenieionns 11

PURR ceacte e ee . ae

ra clits Be MELO cccceckacecsinatesesaanneerauccase acaaeubcuuaaien 6

co 10

Re Rr ioliiic Oy Ne IPE EL ecccerinesonccecanuseosansasiensconsammcieduacs 8

53 Fed. Reg. 28,126 (1988) ............000000..... aa 15

OO FOG. OR. SBI C1 BBB) onncccccccnccccecsccccnscnceasesececceos: 6

He ees HE, I COD we wniccsecencisacinecenseasscennsesonnmnan 9

Fy em EG) ee eee aoe 2,6

Pens US 11

Iu the Supreme Court of the United States

OcTOBER TERM, 1992

No. 92-

CHEMICAL MANUFACTURERS ASSOCIATION and

AMERICAN PETROLEUM INSTITUTE, PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

The Chemical Manufacturers Association and the

American Petroleum Institute, by their undersigned coun-

sel, petition for a writ of certiorari to review the judg-

ment and opinion of the court of appeais in this case.

OPINION BELOW

The opinion of the court of appeals (App. A) is re-

ported at 976 F.2d 2.

JURISDICTION

The opinion of the court of appeals was entered on

September 25, 1992. Respondent EPA filed a timely

petition for rehearing on November 9, 1992. The peti-

tion remains pending. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTE AND REGULATIONS INVOLVED

The relevant portions of Sections 1006, 3001, and 3004

of the Resource Conservation and Recovery Act, 42 U.S.C.

§§ 6905, 6921, 6924, are reprinted in Appendix E. The

Final Rule challenged on review in the court of appeals

has been codified at 40 C.F.R. Parts 148 and 268, and

was published at 55 Fed. Reg. 22,520 (June 1, 1990).

The relevant portions of the rule are reproduced in Ap-

pendix F.

STATEMENT OF THE CASE

Introduction

This case concerns the D.C. Circuit’s unwarranted ex-

pansion of the limited judicial role °» reviewing the En-

vironmental Protection Agency’s | erpretation of the

tesource Conservation and Recover, Act (“RCRA”), 42

U.S.C. §§ 6901 et seq. RCRA. n pertinent part, ad-

dresses the treatment, storage, and disposal of hazardous

wastes.

EPA issued final regulations under RCRA in June of

1990 that allowed industrial plants to continue the long-

standing practice of aggregating multiple wastewater

streams for centralized treatment or disposal in systems

that are extensively regulated by EPA under the Clean

Water Act or the Safe Drinking Water Act, without

meeting additional requirements under RCRA. The court

of appeals overturned those provisions, holding that in-

dustrial wastewaters managed under those other statutes

must also be treated to meet RCRA standards.

In overturning these key provisions of EPA’s final

regulations, the court of appeals failed to defer to EPA’s

interpretation of ambiguous statutory language, in vio-

lation of “Step Two” of Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

Moreover, the court substituted its own judgment as to

the meaning of that statute by specifying the permissible

content of the new regulations EPA must now develop.

The court’s multiple errors will have enormously harm-

ful effects for years to come, absent review by this Court.

The decision below imposes new RCRA hazardous waste

treatment requirements on thousands of centralized waste-

water management systems that were designed (and are

operated) to meet stringent environmental requirements

under the Clean Water Act (33 U.S.C. 88 1251-1387)

and the Safe Drinking Water Act (42 U.S.C. $§ 300f-

300j-26). These systems manage billions of gallons per

year of dilute nonhazardous industrial wastewater. The

imposition of these new RCRA requirements at such fa-

cilities will present difficult, if not insuperable, technical

challenges, will require the expenditure of millions of

dollars at many facilities, and will achieve scant envi-

romental benefits. These harmful results were not man-

dated by Congress or by EPA, but are due solely to the

actions of the court of appeals.

Statutory and Regulatory Background

Congress enacted RCRA in 1976 to address a wide

range of issues relating to the management of solid waste

and hazardous waste.' Pub. L. No. 94-580, 90 Stat. 2795.

Subtitle C of RCRA regulates hazardous waste and gives

KPA broad authority: (1) to determine which wastes

should be regulated as hazardous, 42 U.S.C. § 6921(a),

(b) (1): (2) to establish standards for generators of

hazardous waste, transporters of such waste, and owners

and operators of facilities that treat, store, or dispose

1 The method of legislating that Congress chose in RCRA was to

enact an amended—indeed, a completely rewritten—-version of the

Solid Waste Disposal Act, originally passed in 1965. See Pub. L.

No. 89-272, Title II, 79 Stat. 992. Technically, therefore, the new

statutory sections enacted in Section 2 of RCRA are properly known

as sections of the Solid Waste Disposal Act. As a matter of common

practice, however, EPA and others dealing with RCRA simply

refer to the relevant sections as sections of RCRA itself. The court

of appeals adopted this convention, and we follow it here.

of such waste, 42 U.S.C. $§ 6922(a), 6923(a)-(b), and

6924(a); and (3) to issue permits for such treatment,

storage, or disposal facilities, 42 U.S.C. § 6925(a)-(e).

RCRA contemplated a new federal regulatory program

for hazardous waste management at a time when other

federal environmental programs, such as those under the

Clean Water Act and the Safe Drinking Water Act, were

already being implemented. The requirements of these

various statutes are complex and far-reaching, and they

overlap to a considerable degree. For this reason, RCRA

contains an unusual provision in Section 1006(b) (1)

that specifically directs EPA to “integrate” the require-

ments of RCRA with the requirements of numerous other

federal environmental statutes, including the Clean

Water Act and the Safe Drinking Water Act “to the

maximum extent practicable.” 42 U.S.C. § 6905(b) (1).

The objective of Section 1006(b) (1) was to ensure that

in establishing regulations under RCRA, EPA avoided

duplication, inconsistency, or disruption of regulatory re-

quirements established under the many other statutes ad-

ministered by EPA.

Congress substantially amended RCRA in the Haz-

ardous and Solid Waste Amendments of 1984, requiring

KPA to promulgate several new sets of regulations deal-

ing with the treatment, storage, and disposal of hazardous

wastes. Pub. L. No. 98-616, 98 Stat. 3221. The amend-

ments to Section 3004 defined the term “land disposal”

to include the placement of wastes in surface impound-

ments and injection wells. The 1984 amendments re-

quired EPA to review all hazardous wastes and then to

promulgate regulations prohibiting land disposal of such

wastes, except in accordance with such methods as EPA

may determine “will be protective of human health and

the environment for as long as the waste remains haz-

ardous....” 42 U.S.C. § 6924(g) (5).

The 1984 amendments also directed EPA to specify

treatment standards for each hazardous waste that would

“substantially diminish the toxicity of the waste or sub-

EEE

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). Once a hazardous

waste is treated in accordance with the treatment stand-

ards established under Section 3004(m) (1), it may then

be land disposed. 42 U.S.C. $$ 6924(g) (5), 6924(m) (2).

This case involves the validity of some of the regula-

tions promulgated by EPA under the amended Section

3004. As we explain below, the regulations at issue rep-

resent EPA’s considered response to the common situation

in which hazardous waste is rendered nonhazardous and

is then treated or disposed of in compliance with another

federal environmental statute. To appreciate the practical

importance of the regulations at issue, and the impact

of the decision below, it is necessary to understand the

two different categories of hazardous waste under RCRA,

and EPA’s regulatory approach to the dilution of such

wastes.

Under Section 3001 of RCRA, 42 U.S.C. § 6921, there

are two routes by which a particular waste may be classi-

fied as a hazardous waste. First, “listed wastes” are

specific wastes that EPA has determined satisfy the

statutory definition of “hazardous waste’ in Section

1004(5) of RCRA, 42 U.S.C. §$ 6903(5). See 40 C.F.R.

$$ 261.3(a) (2) (ii), 261.81-261.38. A listed hazardous

waste generally remains hazardous until it is “delisted”

through a procedure prescribed by EPA. 40 C.F.R.

§ 261.3(d) (2).

Second, so-called “characteristic wastes,” which are at

issue in this case, are classified as hazardous because

they display one or more of a number of specified hazard-

ous characteristics. See 40 C.F.R. §§ 261.3(a) (2) (i),

261.20-261.24. To date, EPA has identified hazardous

characteristics of corrosivity, reactivity, ignitability, and

various kinds of toxicity. These characteristics are phys-

’

ical attributes of the waste, and their presence is deter-

mined by criteria specified in EPA’s regulations.* A char-

acteristic hazardous waste automatically ceases to be a

hazardous waste when it no longer exhibits any of the

specified characteristics. 40 C.F.R. § 261.3(d) (1). It

is immaterial whether the characteristics are removed

through dilution or through some other form of treat-

ment; * the waste simply ceases to be a hazardous waste

as a matter of law. This principle was taken into ac-

count in the design of many industrial wastewater man-

agement systems.

Pursuant to the 1984 amendments, EPA in 1986 di-

vided those hazardous wastes that had not been addressed

in prior rulemaking into three groups, or “thirds,” and

commenced the required review process. On November 22,

1989, EPA published its proposed land disposal restric-

tion reguiations for the “Third Third,’ which included

all characteristic hazardous wastes. 54 Fed. Reg. 48,372

(1989). On June 1, 1990, EPA published its final rule

for the “Third Third” wastes. 55 Fed. Reg. 22,520

(1990). The review of that rule by the court of appeals

is at issue here.

The Final Rule Adopted by EPA

In the “Third Third” rule, EPA faced a host of diffi-

cult legal, technical, and policy issues concerning the

application of the land disposal restrictions to charac-

teristic hazardous wastes. These issues have extraord-

inary practical importance for American industry, because

many thousands of industrial plants produce at least

* For example, a waste that is either highly acidic or highly alka-

line exhibits the characteristic of corrosivity and is therefore a

hazardous waste. 40 C.F.R. § 261.22.

3 RCRA’s sweeping definition of “treatment” includes dilution as

a method of rendering a waste nonhazardous or less hazardous.

RCRA § 1004(34), 42 U.S.C. § 6903(34).

some wastewater that exhibits a RCRA hazardous charac-

teristic, if only briefly.

In developing the “Third Third” rule, EPA had to

decide whether to allow dilution to be used to bring

characteristic wastes into compliance with the new treat-

ment standards established under Section 3004(m), or

whether to require that other methods of treatment be

used. It is worth stressing that RCRA does not require,

or even mention, such a prohibition on dilution of haz-

ardous wastes. In 1986, EPA adopted, as a matter of

policy, a general rule prohibiting the use of dilution as

a substitute for adequate treatment or as a means of

avoiding or circumventing restrictions on the land dis-

posal of hazardous wastes, and it had applied this gen-

eral rule to listed hazardous wastes. See 40 C.F.R.

§ 268.3 (1987). In the “Third Third” rulemaking, EPA

needed to decide whether and to what extent to apply

this general rule to characteristic wastes.

The question whether EPA’s general dilution rule

should be applied to characteristic wastes was crucial

because, unlike listed wastes, characteristic wastes often

ean be rendered nonhazardous through dilution to remove

the relevant physical characteristic. Indeed, as EPA rec-

ognized, such dilution frequently occurs in the course of

normal industrial operations, as multiple wastewater

streams are aggregated before treatment in Clean Water

Act systems or disposal in Safe Drinking Water Act

injection wells. App. 107a, 110a. The aggregation of dif-

ferent wastewater streams often results in a combined

wastewater stream that does not exhibit any hazardous

characteristic and would not independently be classified

as hazardous under EPA’s RCRA regulations. Aggrega-

tion also minimizes or eliminates the short-term hazards

posed by ignitable, corrosive, or reactive wastes, whose

physical properties could otherwise pose significant health

and safety risks to workers. In its rulemaking, EPA

was faced with the question of whether to disrupt these

long-standing practices by applying the dilution prohibi-

tion to aggregation activities. A brief description of these

practices is provided below.

Description of CWA Treatment Systems and SDWA Injection

Wells

Tens of thousands of industrial plants across the United

States operate wastewater treatment systems that prop-

erly aggregate, treat, and discharge a wide variety of

wastes in compliance with the Clean Water Act’s

(“CWA”) comprehensive regulatory scheme. These sys-

tems, which handle billions of gallons of wastewater each

year, must comply with stringent technology-based treat-

ment standards set out in EPA regulations, and with fed-

eral, state, and often local discharge permits.* CWA

treatment systems can be exceedingly complex, encom-

passing many miles of piping and many different kinds

of treatment equipment, including tanks and _ surface

impoundments. Many of these systems contain multiple

treatment processes, including biological treatment of or-

ganic constituents, removal of metals by precipitation,

and neutralization of acidic and alkaline materials, prior

to discharge of the treated effluent. None of the practices

at issue avoids the proper treatment of hazardous wastes.

Similarly, industrial plants that utilize underground

injection wells regulated under the Safe Drinking Water

Act (“SDWA”’) are typically designed so that wastewater

streams generated on-site are centrally aggregated and

pretreated to facilitate injection pursuant to permits is-

sued under the Underground Injection Centrol (“UIC”)

program. The large volume of aggregated dilute waste-

water, from which all hazardous characteristics have been

removed, is then injected by means of “deep wells” into

4In 1972, the CWA established the National Pollutant Discharge

Elimination System (“NPDES”) permit program to control the dis-

charge of pollutants into the waters of the United States. 33 U.S.C.

§ 1342. EPA has issued stringent effluent discharge limitations for

numerous industries. 40 C.F.R. Parts 405-471.

geologic formations thousands of feet below the earth’s

surface, where it will remain isolated for millions of

years below the lowermost sources of potentally usable

groundwater. The practice is comprehensively regulated

under the UIC program under the SDWA, and has been

determined by EPA to be safe and effective. App.

109a-113a.

EPA’s Findings on Aggregation of Characteristic Wastes

As described above, the aggregation of different waste-

water streams for centralized management often removes

any hazardous characteristics that may originally have

been present in one or more individual streams. Thus,

the overall wastewater stream entering the CWA treat-

ment system or the SDWA injection well does not exhibit

any hazardous characteristic and would not independently

be classified as hazardous under EPA’s regulations. The

first issue that confronted EPA with respect to such non-

hazardous waste streams in the “Third Third” rulemaking

was whether they were subject to regulation under RCRA

at all, simply because one or more of their component

parts once exhibited a hazardous characteristic.

In its proposed rule, EPA recognized that there was

a question as to its legal authority to restrict the land

disposal of nonhazardous wastes from which any hazard-

ous characteristics had been removed prior to disposal,

and it sought comment on this issue. 54 Fed. Reg. 48,491

(1989). Many commenters, including petitioners, argued

that EPA lacks authority under RCRA to require further

treatment of formerly characteristic hazardous wastes

that have been rendered nonhazardous prior to disposal.

These commenters pointed out that the land disposal pro-

hibitions in Section 3004(g) speak only to the land dis-

posal of “hazardous wastes,” and that the Section 3004 (m)

treatment standards likewise apply only to “hazardous

wastes” that would otherwise be prohibited from disposal.

In the final “Third Third” rule, however, EPA deter-

mined that RCRA afforded it some flexibility in determin-

ing the point at which the land disposal restrictions apply

to various wastes. According to EPA, Section 3004 of

RCRA could be read to apply the land disposal restric-

tions either at the “point of generation” or at the “point

of disposal.” App. 98a-100a. EPA explained that the rele-

vant language in Section 3004 of RCRA is ambiguous,

and its interpretation of that language was a “permis-

sible” reading of the statute under “Step Two” of Chev-

ron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). App. 98a.

Under a “point of generation” approach, the Section

3004 land disposal restrictions can begin to appiy as soon

as a hazardous waste is generated, so that land disposal

cannot occur until RCRA treatment standards are met,

even if the waste ceases to be a “hazardous waste” before

it is disposed. Under a “point of disposal’ approach,

on the other hand, the land disposal restrictions would

only come into play at the time a waste is disposed.

Accordingly, if a waste, or an aggregated stream of

wastes, were not hazardous at that point, RCRA’s land

disposal restrictions simply would not apply.

Having asserted its legal authority over characteristic

wastes from their “point of generation,” EPA turned to

the complex question of how its 1986 general dilution

rule should apply to characteristic wastes, including

wastes that are rendered nonhazardous before the “point

of disposal.” For certain characteristic wastes, EPA

promulgated a treatment standard of “Deactivation.”

This standard permitted the use of any treatment method,

including dilution, to remove the hazardous character-

istic and make the waste eligible for land disposal.’ 40

C.F.R. § 268.42.

* The court of appeals vacated EPA’s “Deactivation” standard in

certain respects. App. 26a-36a.

For other characteristic wastes, however, EPA decided

that its 1986 general dilution rule should apply, and that

dilution should be prohibited as a substitute for more

appropriate treatment. For these wastes, EPA either

(i) specified a particular treatment method other than

dilution or (ii) adopted a treatment standard expressed in

terms of a concentration level, relying on its general

dilution rule to prevent that level from being achieved

through improper dilution. See 55 Fed. Reg. 22,656.

Even for these wastes, however, EPA provided two criti-

cally important exceptions to the general prohibition

against diluting charactersitic hazardous wastes. These

are the two exceptions at the heart of this case.

EPA decided that with respect to formerly charac-

teristic wastes that are managed in regulated CWA or

SDWA systems, the land disposal restrictions should apply

at the “point of disposal,” rather than at the “point

of generation.” App. 106a-113a. EPA concluded that

where any hazardous characteristics have been eliminated,

through aggregation or otherwise, prior to placement on

the land, and where the resulting waste is then managed

in compliance with another federal environmental regu-

latory program, RCRA need not be read to impose any

additional and potentially conflicting requirements of

‘ts own, such as the dilution prohibition. Jd. Specifi-

eally, EPA determined that once a characteristic waste

no longer exhibits any hazardous characteristic and it is

either (i) treated in a wastewater treatment system

regulated under the Clean Water Act, or (ii) disposed

of in an underground injection well regulated under the

Safe Drinking Water Act, then imposing additional treat-

ment requirements under RCRA is unnecessary as a

matter of law and unwarranted as a matter of environ-

mental policy. See id.; 40 C.F.R. € 268.3(b) (the CWA

exception); § 268.1/¢c) (3) (the SDWA exception).

In reaching this conclusion, EPA also relied on the

integration mandate of Section 1006(b) (1) of RCRA.

EPA determined that the CWA regulatory program

already imposes adequate treatment requirements and

dilution restrictions on industrial wastewater treatment

systems. See, e.g., App. 96a-98a, 106a-109a. Similarly,

EPA reasoned that the SDWA regulatory scheme pro-

vides ample environmental safeguards for the disposal of

nonhazardous wastes in underground injection wells.® In

both cases, EPA found that applying additional RCRA

land disposal restrictions, such as the dilution prohibi-

tion, would be needlessly confusing and disruptive to

facilities regulated under the other two statutes. See,

e.g., EPA “Background Document: Response to Com-

ments on Third Third Proposed Rule,” Vol. 3 (May 3,

1990), Doe. No. LD13-50285, at 200, 203, 209, 242, 268-

71, J.A. 351, 354, 360, 381 404-07 (EPA agrees that

prohibiting dilution of wastes managed under CWA

“would have created havoc for industrial wastewater

treatment systems” that are environmentally sound and

well-regulated). As EPA stated, Section 1006(b) (1) of

RCRA gives it “the authority to consider these integra-

tion problems and set regulations that are consistent with

the goals and policies of the CWA and RCRA.” App.

108a.

The Decision of the Court of Appeals

EPA’s final “Third Third” rule was challenged by

various parties on numerous grounds. Petitioners and

others challenged EPA’s authority to adopt the “point

of generation” approach, arguing that RCRA precluded

EPA from regulating wastes that are not hazardous at

6 EPA found that segregating the individual characteristic haz-

ardous wastewater streams for separate treatment under RCRA

would yield no environmental benefit at all:

EPA believes that the application of dilution rules to these

wastes would not further minimize threats to human health and

the environment. Specifically, EPA believes that disposal of

[the relevant wastes] by underground injection at the char-

acteristic level is as sound as the treatment option.

App. 110a.

“a

the point of disposal. On the other hand, the commercial

hazardous waste treatment industry and certain environ-

mental groups challenged EPA’s decision to allow aggre-

gation of multiple wastewater streams (including char-

acteristic wastes), followed by management of the dilute,

nonhazardous aggregated stream in CWA treatment sys-

tems or SDWA injection wells. Petitioners herein inter-

vened in support of EPA with respect to this issue.

The court of appeals rejected petitioners’ argument

that the land disposal restrictions must apply only at the

point of disposal and held that EPA can apply the re-

strictions at the “point of generation.” App. 21a-26a.

In rejecting petitioners’ challenge to the regulation of

wastes that are not hazardous at the “point of disposal,”

the court expressly relied on Chevron, U.S.A., Inc. v.

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

(1984), declaring that “ly]nder Chevron, unless Con-

gress has spoken directly to these questions, the EPA’s

determinations are entitled to deference, if reasonable.”

App. 21a. However, when it turned to EPA’s application

of its RCRA dilution rules in the context of wastewater

management systems regulated under the CWA or the

SDWA, the court of appeals disregarded Chevron and

rejected EPA’s interpretation of its statutory authority.

Failing even to mention Chevron in this portion of its

opinion, the court substituted its own interpretation of

Section 3004 for EPA’s and held that EPA must apply

the “point of generation” approach to the formerly char-

acteristic wastes at issue here. The court summarily

dismissed EPA’s interpretation of Section 3004 of RCRA

as allowing the land disposal restrictions to apply to the

wastes at issue at the “point of disposal.” App. 37a-55a.

As a result of the court’s ruling, EPA has no choice but

to subject dilute wastewaters entering CWA treatment

systems or SDWA injection wells to the additional treat-

ment requirements developed by EPA under RCRA, even

though such wastewaters no longer exhibit any hazard-

i |.

ous characteristic and are not RCRA hazardous wastes

as a matter of law.

Similarly, the court of appeals rejected EPA’s care-

fully considered decision to integrate the requirements

of RCRA with those already in force under the CWA

and the SDWA. The court brushed aside EPA’s obliga-

tion to integrate RCRA with these other environmental

statutes pursuant to RCRA § 1006(b) (1), overturning

EPA’s approach and substituting its own extremely nar-

row view of “integration.”

With respect to the Clean Water Act, the court held

that formerly characteristic wastewaters may be placed

in CWA treatment systems containing surface impound-

ments “if and only if” they are then treated “to the same

degree” as RCRA would require for wastes that were

actually hazardous. App. 47a (emphasis in original), 45a

‘emphasis in original). According to the panel, RCRA

$ 1006(b) (1) allows no modification of RCRA treatment

standards to suit the circumstances of Clean Water Act

treatment facilities. App. 48a. The court never acknowl-

edged the arguments made by both EPA and petitioners

that, due to considerations of technical feasibility, engi-

neering complexity, and economic achievability, applying

the dilution prohibition was simply unworkable for the

tens of thousands of industrial plants that operate Clean

Water Act treatment systems. EPA Br. at 64-67; Indus-

try Intervenors Br. at 38.

With respect to the Safe Drinking Water Act, the

court held that formerly characteristic wastewaters may

be placed in underground injection wells only where

dilution itself meets the RCRA treatment standard, or

where the deep well secures a “no-migration” variance.’

The court shrugged off EPA’s obligation to integrate

—_—

7 Under 40 C.F.R. §§ 268.6 and 148.20, a land disposal facility may

be exempted from RCRA’s land disposal restrictions if the operator

RCRA requirements and SDWA requirements under

RCRA § 1006(b) (1). Again, the court disregarded the

arguments advanced by both EPA and petitioners that

many SDWA facilities would likely be unable to con-

tinue operating—or at the least would be subjected to

massive, unnecessary disruption and expenditure—absent

EPA’s limited exception to the dilution prohibition. EPA

Br. at 71-75; Industry Intervenors Br. at 20-24.* In-

deed, the court dismissed these concerns as “simply ir-

relevant.” App. 55a.

In response to an unopposed joint motion by all parties

to stay the court’s mandate, the court of appeals initially

stayed its mandate for 90 days, through February 11,

1993 (App. B). Subsequently, the court sua sponte va-

cated its stay order (App. C), and a divided panel then

entered a substitute order granting a stay only through

January 5, 1993 (App. D). The order noted that Judge

Edwards would have denied the motion in its entirety.

Respondent EPA filed a timely petition for rehearing

with respect to certain aspects of the court’s decision on

November 9, 1992. That petition is still pending.

REASONS FOR GRANTING THE PETITION

This case presents questions of extraordinary prac-

tical importance concerning the reach of RCRA’s haz-

ardous waste regulations and the limited role of the

courts in reviewing such regulations. The decision below

effectively compels EPA to impose RCRA treatment re-

quirements on billions of gallons of dilute wastewater

———

can demonstrate “to a reasonable degree of certainty, that there

will be no migration of hazardous constituents from the disposal

unit or injection zone for as long as the wastes remain hazardous.”

8 Furthermore, the court’s assumption that “injected wastes are

not treated further,” App. 58a, ignores without justification the

substantial transformation and detoxification of these wastes that

occur after injection. See App. 110a-llla; 53 Fed. Reg. 28,126 (July

16, 1988).

‘

A* ins

generated each year at many thousands of industrial

plants across the United States. This wastewater is al-

ready extensively regulated under the Clean Water Act

and the Safe Drinking Water Act. There is no evidence

that Congress intended to compel EPA to impose addi-

tional treatment requirements under RCRA. EPA deter-

mined that further treatment of such wastewater is not

required as a matter of law and makes no sense as a

matter of environmental policy. But the court of appeals

failed to defer to EPA’s reasonable interpretation of

RCRA and instead took matters into its own hands.

The decision below robs EPA of the substantial dis-

cretion that Congress conferred upon it in RCRA, both

as to determining under what circumstances land dis-

posal should be permitted and as to integrating the re-

quirements of several potentially conflicting environ-

mental statutes. The decision also flies in the face of

this Court’s precepts about the proper scope of judicial

review under the Chevron doctrine.

Because the provisions of RCRA do not clearly and

unambiguously require the results reached by the court

of appeals, this case must be resolved under “Step Two”

of the Chevron doctrine. But contrary to “Step Two” of

Chevron, the court of appeals failed to defer to EPA’s

interpretation of ambiguous provisions in Section 3004

of RCRA. It also rejected EPA’s careful “integration”

of three separate environmental regulatory programs,

thereby depriving Section 1006(b) (1) of RCRA of any

vitality. Indeed, the court of appeals virtually prescribed

the contents of the new rules EPA must now develop in

short order to replace those that were overturned.

Unfortunately, the court of appeals did not appreciate

the consequences of its actions. The decision below im-

poses new RCRA treatment standards on many thousands

of centralized wastewater management systems that are

designed and operated to meet stringent environmental

requirements under the Clean Water Act and the Safe

Drinking Water Act. Bringing these systems into com-

pliance with RCRA will be a protracted, difficult, and

costly process. The aggregate cost to society of this

startling regulatory expansion will be measured in the

billions of dollars, but the environmental benefits will be

slight. The court of appeals is ill-equipped to make policy

choices of this magnitude.

The D.C. Circuit is the only court of appeals that may

review RCRA regulations issued by EPA. 42 U.S.C.

§ 6976(a) (1988). As a result, there will be no further

consideration by the lower federal courts of the issues

decided below, and no conflict among the circuits can ever

arise over EPA’s interpretation of RCRA. The court of

appeals’ errors will be lasting, in the absence of review

by this Court, and its improper mode of judicial review

may well infect the review of other actions taken by

EPA and other agencies.

I. THE COURT OF APPEALS FAILED TO FOLLOW

FUNDAMENTAL PRINCIPLES OF STATUTORY

CONSTRUCTION AND DEFERENCE TO AGENCY

INTERPRETATIONS.

The court of appeals largely disavowed the principles

that govern judicial review of agency action under Chev-

ron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 887 (1984). Under “Step One” of Chevron,

of course, the reviewing court first considers ‘whether

Congress has directly spoken to the precise question at

issue.” 467 U.S. at 842. Where “Congress has not directly

addressed the precise question at issue,” then “Step Two”

of Chevron provides that “the question for the court is

whether the agency’s answer is based on a_ permissible

construction of the statute.” 467 U.S. at 843.

In overturning EPA’s limited exceptions to the dilu-

tion prohibition, the court of appeals twice failed to

honor “Step Two” of Chevron. First, it rejected EPA’s

interpretation of RCRA § 3004, under which EPA may

_—————————————

apply the land disposal restrictions at the “point of dis-

posal,” rather than at the “point of generation,” under

appropriate circumstances. Second, it discarded EPA’s

reading of RCRA §1006(b) (1), which affirmatively

commands EPA to integrate its RCRA regulations with

the requirements of the Clean Water Act, the Safe Drink-

ing Water Act, and several other environmental statutes.

Thus, although the decision below will impose very sub-

stantial costs on our society, “it was the Court of Appeals,

rather than Congress or any of the decisionmakers who

are authorized by Congress to administer the legislation,

that was primarily responsible for” this result. 467 U.S.

at 864.

A. The Court’s Interpretation of RCRA § 3004

Petitioners and others argued in the “Third Third”

rulemaking that if a waste is not hazardous at the “point

of disposal,” then EPA lacks authority under RCRA to

apply its land disposal restrictions to that waste. EPA

rejected this view and concluded that the pertinent lan-

guage in RCRA § 3004 is ambiguous, giving EPA some

flexibility in applying the land disposal restrictions to

various wastes at either the “point of disposal” or the

“point of generation.”

In the court of appeals, petitioners continued to main-

tain their reading of the statute, and they further ar-

gued that even if the statutory interpretation they urged

was not clearly mandated by Congress, then, at a mini-

mum, EPA’s more flexible interpretation is permissible

under “Step Two” of Chevron. Petitioners—and EPA—

contended, therefore, that EPA was justified in applying

the “point of disposal” approach in crafting exceptions to

the dilution prohibition, where those exceptions would

allow continued aggregation of wastewaters so as to re-

move any hazardous characteristics prior to centralized

management in CWA treatment systems or SDWA injec-

tion wells, without unnecessarily subjecting those waste-

waters to the Section 3004(m) treatment standards.

The court of appeals, however, rejected EPA’s approach

and declared that EPA should apply its RCRA land dis-

posal restrictions to wastewater streams that once ex-

hibited a hazardous characteristic at the “point of gener-

ation,” regardless of whether they are actually hazardous

at the “point of disposal.” As a result, the court held that

such wastewaters must satisfy RCRA § 3004(m) treat-

ment standards, and that if those standards cannot be

satisfied by means of dilution, other treatment methods

must be used. This conclusion, reached without refer-

ence to Chevron and without analysis of the relevant

statutory provisions, is nothing more than judicial legis-

lation.

Unfortunately, the court of appeals passed over virtu-

ally all of the statutory provisions supporting the “noint

of disposal” approach and concluded that a “point of

generation” approach was required. The court of appeals

disregarded most of the relevant language in RCRA,

describing it as a “welter” of statutory terms, and

focused solely on a single phrase in Section 3004(m)

(1).° App. 21a. The court of appeals thus failed to

meet its obligation to consider the relevant statutory

language as a whole in order to determine if Congress

clearly spoke to the “precise issue” in question. Fort

Stewart Schools v. Federal Labor Relations Authority,

495 U.S. 641, 645 (1990) (in determining if the intent

of Congress is clear, “the particular statutory language

9 The court of appeals emphasized that treatment standards

adopted under § 3004(m)(1) are to “minimize” threats from haz-

ardous wastes that are land disposed. But the court's references to

§ 3004(m) (1) as the “heart” and the “core” of RCRA, App. 56a,

44a, find no support in the statute. And the court ignored other

provisions of RCRA—cited below by the parties—that limit the

reach of the § 3004(m)(1) treatment standards to wastes that are

still hazardous at the “point of disposal.”

at issue, as well as the language and design of the statute

as a whole” are to be considered).

The key statutory provision is Section 3004(g) (5) of

RCRA, 42 U.S.C. § 6924(g) (5), which directs EPA to

prohibit “one or more methods of land disposal of the

hazardous wastes” covered by subsection (g), which in-

cludes characteristic hazardous wastes. (Emphasis added.

This provision then authorizes EPA to provide excep-

tions for those “methods of land disposal which |EPA

determines will be protective of human health and en-

vironment for as long as the waste remains hazardous

.’ (Emphasis added.) Finally, Section 3004 (g) (5)

recognizes another exception for any “hazardous waste

which has complied with the pretreatment regulations

promulgated under subsection (m) .’ (Emphasis

added. )

Plainly, the principal (if not exclusive) focus of Sec-

tion 3004(g) (5) is on the disposal of waste that is haz-

ardous at the time of disposal. Thus, EPA acted reason-

ably in choosing to limit the application of its RCRA land

disposal restrictions—including the general dilution rule

—in situations where wastes would be rendered non-

hazardous prior to land disposal and would then be

managed in accordance with the CWA or the SDWA.

The point is confirmed by numerous other provisions

of RCRA. Indeed, Subtitle C of RCRA as a whole limits

EPA’s regulatory authority to “hazardous waste.’ Sec-

tion 3004 is part of Subtitle C, and it consistently uses

the term “hazardous waste” in describing the land dis-

posal restrictions. For example, Section 3004(k) defines

the critical term “land disposal” as “any placement of

... hazardous waste in a landfill, surface improundment,

waste pile, [or] injection well... .” (Emphasis added.)

Because “placement” refers to the actual deposit of waste

into the disposal unit, the natural reading of this defini-

tion is that “land disposal” refers only to wastes that

are hazardous at the time of disposal.

In sum, RCRA cannot be read as compelling EPA to

use a “point of generation” approach in all circumstances

and apply its land disposal restrictions to wastewater that

is no longer hazardous at the point of disposal. EPA’s

lecision to use a “point of disposal’? approach for for-

erly characteristic wastes managed in CWA or SDWA

“stems was plainly permissible under “Step Two” of

ron, and should have been upheld.

B. The Court’s Interpretation of RCRA § 1006(b)(1)

Section 1006(b) (1) of RCRA specifically commands

EPA to “integrate” ' all provisions of RCRA with the

provisions of the other environmental statutes adminis-

tered by EPA, including the Clean Water Act and the

Safe Drinking Water Act, to avoid unnecessary disrup-

tion or duplication. Although Congress directed that this

integration be accomplished “to the maximum extent

practicable” and “consistent with the goals and policies”

of the statutes involved, it plainly left to EPA’s expert

judgment the details of how these complex provisions

should be harmonized. On its face, then, EPA’s interpre-

tation of Section 1006(b) (1) in the “Third Third” rule

presents a Chevron “Step Two” question.

In considering whether or not to disrupt (by applying

its RCRA general dilution rule) the widespread and

environmentally beneficial practices of aggregating waste-

waters for centralized management in CWA treatment

systems and SDWA injection wells, EPA correctly

observed that Section 1006(b) “provides EPA the author-

ity to consider these integration problems and set regula-

tions that are consistent with the goals and policies of

the CWA and RCRA.” App. 108a. As noted earlier,

EPA made specific findings that the approach taken in

the “Third Third” final rule properly integrated the re-

10 The word “integrate” means “to form into a more complete,

harmonious, or coordinated entity often by the addition or arrange-

ment of parts or elements.” Webster’s Third New International

Dictionary 1174 (1966).

quirements and promoted the purposes, of all three stat-

utes."’ App. 94a, 102a-1038a.

EPA’s final “Third Third” rule faithfully implemented

Congress’s explicit directive to “integrate” the require-

ments of these three environmental statutes. It should

have been upheld as a “permissible” reading of RCRA

under “Step Two” of Chevron. Yet without even mention-

ing Chevron, the court of appeals overturned EPA’s deci-

sion to integrate the requirements of RCRA, the CWA,

and the SDWA in order to allow centralized management

of industrial wastewaters to continue.

The court of appeals thus departed once again from

the mode of judicial review prescribed by Chevron. EPA’s

“Third Third” rulemaking fits precisely this Court’s

description of the controversy it faced nearly a decade

ugo in Chevron itself:

In these cases the Administrator’s interpretation

represents a reasonable accommodation of manifestly

competing interests and is entitled to deference: the

regulatory scheme is technical and complex, the

agency considered the matter in a detailed and

reasoned fashion, and the decision involves reconciling

conflicting policies. Congress intended to accommo-

date both interests, but did not do so itself on the

level of specificity presented by these cases.

467 U.S. at 865. By striking down EPA’s “reasonable

accommodation of manifestly competing interests,” the

11EPA, of course, administers all three statutes, and is thus

entitled to considerable deference in discerning their purposes. As

the First Circuit observed in a similar setting, the interaction of

RCRA and CWA raises “the very sort of interstitial legal question”

that should be answered by EPA, not by a reviewing court. EPA

alone has “the experience thai will permit it properly to mesh these

related statutes, both to avoid senseless or overly harsh results, and

better to fulfill their overall environmental objectives.” Comite Pro

Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Authority, 888

F.2d 180, 186 (Ist Cir. 1989) (Breyer, J.), cert. denied, 494 U:S.

1029 (1990).

court of appeals plainly exceeded the permissible scope

of judicial review.

Il. THE COURT OF APPEALS IMPROPERLY DIC-

TATED THE REGULATIONS THAT EPA MUST

DEVELOP ON REMAND.

The court of appeals was not content to vacate EPA’s

permissible interpretations of RCRA’s ambiguous pro-

visions. Instead, the court compounded its error by speci-

fying the content of the new rules EPA must now develop

to replace those set aside in this case. This was judicial

rulemaking, pure and simple.

With respect to CWA treatment systems, the court of

appeals decided that RCRA’s “integration” mandate

allows EPA to modify the timing of RCRA treatment,

but not the extent of that treatment. If wastewaters are

aggregated for centralized treatment in a CWA system,

according to the decision below, they must be treated “to

the same degree” as they would be treated in a RCRA

system. App. 45a (emphasis in original). The effect of

this pronouncement is to foreclose prematurely some of

EPA’s options for responding to the court’s decision.

For example, EPA may wish to consider on remand

whether to develop separate RCRA treatment standards

for the wastewaters at issue here based on the kind of

treatment equipment actually found in CWA wastewater

treatment systems. Nothing in either statute precludes

the adoption of RCRA treatment standards that are tail-

ored to the circumstances of CWA facilities. Yet the

court of appeals went out of its way to opine that “noth-

ing in RCRA or the CWA permits the EPA to establish

different treatment standards when wastewaters are

treated in CWA systems instead of facilities operated

solely to RCRA standards.” App. 44a. This ill-considered

pronouncement condemns EPA and American industry

to a long and difficult struggle, as the square peg of RCRA

will not fit in the round hole of the CWA."

The court of appeals’ foray into judicial rulemaking

was clearly improper. Although the D.C. Circuit has the

power to vacate and remand rules that it determines are

contrary to law, it has no authority to dictate the content

of replacement rules. As this Court pointed out in De-

partment of the Treasury v. Federal Labor Relations

Authority, 494 U.S. 922 (1990):

When an agency is charged with administering a

statute, part of the authority it receives is the power

to give reasonable content to the statute’s textual

ambiguities. That is a task infused with judgment

and discretion, requiring the “ ‘accommodation of

conflicting policies that were committed to the

agency’s care.’” It is not a task we ought to under-

take on the agency’s behalf in reviewing its orders.

Id. at 933 (citations omitted).

It is not for courts to redraft regulations, but for

regulatory agencies. See Barker v. Wingo, 407 U.S. 514,

523 (1972) (courts should confine their efforts to adjudi-

cation, not legislation or rulemaking) ; White House Vigii

for the ERA Committee v. Clark, 746 F.2d 1518, 1541

(D.C. Cir. 1984) (judicial “finetuning” of regulatory

mechanism is impermissible); Hyatt v. Sullivan, 899

F.2d 329, 336 n.8 (4th Cir. 1990) (vacating portions of

district court orders specifying action agency was to take,

leaving it to the agency in the first instance to draft

rules) ; see also Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, 435 U.S. 519 (1978)

(court of appeals improperly engaged in procedural rule-

making).’* Accordingly, the court of appeals exceeded its

12 The consequences for SDWA injection wells will be equally

harmful.

13 [In Mistretta v. United States, 488 U.S. 361, 387-88 (1989), the

Court explained that federal courts may only engage in rulemaking

authority by prescribing the permissible content of EPA

rules, rather than simply remanding the rules it viewed

as unlawful.

Ill. THE DISRUPTION WROUGHT BY THE COURT

OF APPEALS WILL BE WIDESPREAD, LONG-

LASTING, AND ENORMOUSLY EXPENSIVE.

The decision below will impose new RCRA treatment

requirements on many thousands of centralized waste-

water management systems that are designed and oper-

ated to comply with Clean Water Act treatment stand-

ards and Safe Drinking Water Act requirements. Bring-

ing these systems into compliance with RCRA, where that

is possible, will require a multi-billion dollar, multi-year

program of engineering and construction projects. Un-

fortunately, the resulting environmental benefits will be

slight.

The court of appeals’ decision will plainly jeopardize

the interests of many companies that are members of

petitioners, the Chemical Manufacturers Association

(“CMA”) and the American Petroleum Institute arr }.

CMA’s members represent more than 90 percent of the

productive capacity for basic industrial chemicals in the

United States. API’s members include nearly 200 com-

panies engaged in the production, refining, and marketing

of petroleum products. Together, these trade associations

represent hundreds of industrial facilities currently man-

aging wastewaters in CWA treatment systems and under-

ground injection wells. Many of those facilities will be

profoundly harmed by the decision below.

A. Disruption of Clean Water Act Treatment Practices

The court of appeals’ decision will fundamentally dis-

rupt current wastewater management practices at many

when Congress confers such authority on them, and may only engage

in rulemaking functions “that do not trench upon the prerogatives

of another Branch and that are appropriate to the central mission

of the Judiciary.”

thousands of Clean Water Act facilities throughout the

nation. In defending its final rule below, EPA empha-

sized that restricting aggregation would have tremen-

dously disruptive effects on existing, well-managed CWA

wastewater treatment systems. Indeed, EPA specifically

argued that these CWA treatment systems would have no

meaningful compliance options if the RCRA general dilu-

tion rule were applied to them. Responding to several

options suggested by the commercial hazardous waste

treatment industry and certain environmental groups,

EPA pointed out that:

As the record demonstrates, application of dilution

rules under these circumstances would be enormously

disruptive. A dilution prohibition could require a

complete revamping of these systems to provide for

separate analysis of each waste stream and separate

treatment either on- or off-site. It could also lead

to significant regulatory disruption by subjecting

these facilities for the first time to wide-ranging

regulatory requirements under subtitle C (e.g., in-

creased testing, recordkeeping, and possible controls

on the surface impoundments themselves, as NRDC

Petitioners suggest here). The alternatives to cen-

tralized wastewater treatment, blithely mentioned,

do not address these concerns and are in any event

impractical and nonsensical.

EPA Br. at 64-65 (emphasis supplied, citations omitted).

EPA then went on to refute specifically each of the

“options” proposed by the NRDC petitioners, demon-

strating that each would be impractical (if not im-

possible). Jd. at 65-67. Industry intervenors, including

petitioners herein, echoed this argument in their separate

brief. Industry Intervenors Br. at 38. The NRDC peti-

tioners made no attempt in their reply brief to argue that

their proposed alternatives were in fact practical or

feasible in the real world. NRDC Reply Br. at 21-28.

Unfortunately, the court of appeals took no heed of

the disruption to CWA systems that would flow from

overturning EPA’s final rule. And the new “compliance

option” fashioned by the court of appeals—treating CWA

wastewaters “to the same degree” as RCRA hazardous

wastes—is just as “impractical and nonsensical” as the

options already addressed by EPA and the industry inter-

yenors below. EPA Br. at 65."

The court of appeals’ approach will have the practical

effect of prohibiting aggregation for many CWA facili-

ties, due to the current impossibility of performing later

treatment “to the same degree” as that required under

RCRA. In order to continue aggregating their waste-

water streams, industrial plants will be required to modify

their CWA treatment systems, at great expense, while

maintaining at all times the current level of treatment

efficiency that enables them to comply with their strin-

gent CWA permits. As EPA and industry intervenors

explained below, the other purported compliance options

(segregation for separate treatment, replacement of sur-

face impoundments with tank-based systems, or no-

migration petitions) are equally impractical, and in any

case would require huge expenditures and years to ac-

complish.

In sum, the decision below exposes thousands of in-

dustrial plants to the prospect of violating newly appli-

cable RCRA treatment requirements for several years,

even as they expend millions of dollars per plant in an

effort to achieve compliance.

B. Disruption of SDWA In jection Well Practices

As described above, the court of appeals essentially

rescinded EPA’s limited exception to the dilution provi-

sion for underground injection wells. This judicial rule

14 No party to the litigation advocated the approach adopted by the

court of appeals. Indeed, the court’s “compliance option” reflects

considerable confusion over the interaction between RCRA and the

CWA.

change will severely disrupt current management prac-

tices for these nonhazardous wastes, and will force in-

dustry to perform burdensome reengineering efforts, with

little discernible benefit to human health or the en-

vironment.

In order to continue underground injection at all, many

facilities will be required to segregate multiple waste-

water streams for separate treatment before aggregation

and injection. Segregation of characteristic waste streams

will be a tremendously difficult, if not impossible, task in

the massive, complex facilities that have intentionally

been designed and built from the ground up to facilitate

environmentally safe centralized management of process

wastes. Once wastes have been segregated and collected,

manufacturers will have to construct and seek permits

for treatment facilities on site, or ship wastes off site

to commercial facilities. Due to the truly enormous

volumes of wastewater involved at some manufacturing

plants, transportation to off-site treatment facilities would

be impossible; at other plants, it would require the im-

mediate availability of dedicated pipelines, or large fleets

of rail cars or tanker trucks running around the clock.

Moreover, forcing the segregation and separate treat-

ment of characteristic wastewaters would pose increased

health and safety risks to workers, because it would in-

crease exposure to the corrosive, ignitable, and reactive

materials in their original, untreated form. Prior to the

court’s decision, these hazards were minimized through

aggregation, which removed the hazardous characteristics

at the earliest possible opportunity.

The only alternative to redesign, retrofitting, and

rebuilding would be for injection wells to file “no-

migration” petitions under 40 C.F.R. Part 148, and to

seek approval as hazardous waste injection facilities in

order to inject nonhazardous, formerly characteristic

wastes. But, as EPA recognized, “|t]he petition process

. . « has been very time consuming and resource inten-

ooo

sive.’ App. 112a. This would present an enormous,

unnecessary burden to operators who “{h]ave not had

reason to believe that their operations would be subject

to the land disposal restrictions and have not submitted

variance petitions.” Jd.

Accordingly, the court of appeals’ decision subjects

facilities currently using injection wells for injection of

aggregated, nonhazardous wastes to tremendous burdens,

including the risk of temporary shutdown pending a

“no-migration” petition, or permanent shutdown if a “no-

migration” variance cannot be obtained or is not eco-

nomically feasible.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

DAVID F. ZOLL MICHAEL W. STEINBERG *

RONALD A. SHIPLEY PETER BUSCEMI

CHEMICAL MANUFACTURERS HUNTER L. PRILLAMAN

ASSOCIATION MorGAN, LEWIS & BOCKIUS

2501 M Street, N.W. 1800 M Street, N.W.

Washington, D.C. 20037 Washington, D.C. 20036

(202) 887-1160 (202) 467-7141

G. WILLIAM FRICK

2ALPH J. COLLELI, JR.

AMERICAN PETROLEUM

INSTITUTE

1220 L Street, N.W.

Washington, D.C. 20005

(202) 682-8252

January 5, 1993 * Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 30, 1992 Decided September 25, 1992

No. 90-1230, et al.

““COMPLEX”’

CHEMICAL WASTE MANAGEMENT, INC., e¢ al.,

Petitioners

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent

ZINC CORPORATION OF AMERICA, et al.,

Intervenors

Consolidated cases 90-1245, 90-1275, 90-1303, 90-1314,

90-1330, 90-1404, 90-1410, 90-1413, 90-1414,

90-1416, 90-1417, 90-1423, and 90-1442

Petitions for Review of Orders of the

Environmental Protection Agency

David R. Case, with whom Eli D. Eilbott (for

Hazardous Waste Treatment Council), Karen L.

OEE

Florini (for Environmental Defense Fund). A. Blake-

man Early (for Sierra Club), and Jacqueline M.

Warren and Douglas Wolf (for Natural Resources

Defense Council) were on the joint brief, for peti-

tioners in Nos. 90-1230, 90-1245, and 90-1417 and

intervenors in consolidated cases. Jane L. Bloom and

J. Brian Malloy also entered appearances.

Michael W. Steinberg (for Chemical Manufactur-

ers Ass’n), Richard A. Flye (for The Fertilizer In-

stitute, et al.), and Angus Macbeth (for Chemical

Waste Management, et al.), with whom Hunter Prill-

aman, David F. Zoll, Ronald Shipley, Robert F. Van-

Voorhees, and Barton D. Day (for Chemical Manu-

facturers Ass’n), Gordon D. Quin (for The Fertilizer

Institute), G. William Frick and Ralph J. Colleli, Jr.

(for American Petroleum Institute), Kurt J. Alson

(for RSR Corporation), John N. Hanson and Donald

J. Patterson, Jr. (for American Mining Congress),

Aaron H. Goldberg (for American Mining Congress,

American Iron and Steel Institute, and Dow Chemical

Co.), Karl S. Bourdeau (for American Iron and

Steel Institute), Cynthia H. Evans (for American

Paper Institute and the National Forest Products

Ass’n), William M. Guerny, Jr. (for Specialty Steel

Industry of the United States), Thomas G. Echikson

(for Chemical Waste Management, Inc.), William

R. Weissman and Douglas H. Green (for Edison

Electric Institute), and Karl S. Bordeau (for Dow

Chemical Co.) were on the joint brief, for industry

petitioners/intervenors in all cases. Lynn L. Berge-

son, Susan S. Schmedes, Paul E. Shorb III, Barton

C. Green, Carole Stern, Edward M. Green, Roderick

T. Dwyer, John L. Wittenborn, Paul M. Bork, Steven

I. Hauseal, Thomas McCormich, Nancy D. Tammi,

Arline M. Sheehan, and Howard B. Myers also en-

tered appearances for industry petitioners /interven-

ors.

Edwin H. Seeger and Kurt E. Blase entered ap-

pearances for petitioner Exide Corp., Inc., in No.

90-1303.

Paul E. Gutermann and John N. Moore entered

appearances for petitioners Horsehead Resource De-

velopment Co., Inc., and Zine Corporation of Amer-

ea in No. 90-1413 and intervenors in Nos. 90-1404,

90-1410, 90-1414, 90-1416, 90-1417, and 90-1423.

Gwendolyn G. Logan, Stephen E. Roady, and M.

Barry Meyer entered appearances for petitioner the

Aluminum Ass’n in No. 90-1442 and intervenor in

No. 90-1245.

Mary Elizabeth Ward, Attorney, U.S. Department

of Justice, and Stephen E. Silverman, Attorney, En-

vironmental Protection Agency (“EPA”), with whom

Barry M. Hartman, Acting Assistant Attorney Gen-

eral, Gretchen Slosser Pirasteh, Attorney, U.S. De-

partment of Justice, and Raymond Ludwiszewski,

Acting General Counsel, EPA, were on the brief, for

respondents in all cases. Richard B. Stewart, Peter

W. Colby, Christopher S. Vaden, Thomas R. Bart-

man, and Mandan Kenkermath also entered appear-

ances for respondents.

Robert F. VanVoorhees for intervenors Chemical

Manufacturers Ass’n, et al.

Aaron H. Goldberg for intervenors American [ron

and Steel Institute, et al.

Gerald L. Richman and Paul M. Donovan entered

appearances for intervenor Chlorine Institute in all

cases except No. 90-1230.

Robert N. Steinwurtzel and Jeffrey S. Halik en-

tered appearances for intervenors Secondary Lead

Smelters Ass’n, Inc., and Association of Battery Re-

cyclers in Nos. 90-1245 and 90-1314.

Corinne A. Goldstein and Guy V. Johnson entered

appearances for intervenors National Association of

Metal Finishers and E. I. duPont deNemours & Co.

in No. 90-1245.

David B. Weinberg and Kurt J. Olson entered ap-

pearances for intervenor Battery Council Interna-

tional in all cases except No. 90-1230.

Leonard A. Miller and Robert S. Taylor entered

appearances for intervenor Allied-Signal, Inc., in No.

90-1245.

C. Howard Hardesty, Jeffrey S. Halik, and P.

Burton Gray entered appearances for intervenor In-

stitute of Makers of Explosives in Nos. 90-1245 and

90-1330.

Edwin H. Seeger, Jurt E. Blase and Michael A.

Poling entered appearances for intervenors Lead In-

dustries Ass’n, Inc., and Cadmium Council, Inc., in

Nos. 90-1245 and 90-1417.

Carole Stern entered appearances for intervenors

Thiakol Corp. and Olin Corp. in Nos. 90-1275 and

90-1303.

Before EDWARDS, BUCKLEY, and HENDERSON, Cir-

cuit Judges.

Opinion PER CURIAM.

PER CURIAM: The Hazardous and Solid Waste

Amendments of 1984 instituted a ban on the land

disposal of classes of hazardous wastes unless certain

conditions are met. Those amendments require the

Environmental Protection Agency to follow a phased

schedule for implementing the ban. In this case we

consider various challenges to regulations implement-

ing the final portion of this program, the so-called

“third-third” rule, which largely covers the land dis-

posal of wastes deemed hazardous because they

possess certain defined characteristics.

Various petitioners raise multi-faceted challenges.

A group of industry trade associations and compa-

nies! (collectively, “industry petitioners”) seek re-

view of regulations mandating levels of treatment

before land disposal that go beyond the removal of

the attribute that led to the waste’s classification as

hazardous. These petitioners claim that the EPA

lacked authority under the statute to require treat-

ment to such levels. The Fertilizer Institute raises

procedural and substantive objections to provisions

that bar dilution of certain wastes as a form of treat-

ment prior to discharge into the waters of the United

States from treatment facilities licensed under the

Clean Water Act. Finally, three companies attack

the imposition of new testing requirements at dis-

posal facilities as arbitrary and insufficiently clear.

We deny each of these petitions for review. Sec-

tions 3004(g)(5) and (m) of the Resource Conser-

vation and Recovery Act (““RCRA”)* (which are re-

1 American Iron and Steel Institute, American Mining Con-

gress, American Paper Institute, American Petroleum Insti-

tute, Chemical Manufacturers Association, National Forest

Products Association, RSR Corporation, Specialty Steel In-

dustry of the United States and The Fertilizer Institute. The

Dow Chemical Company and the Edison Electric Institute

have intervened in support of the petition.

2A glossary of acronyms and abbreviations is provided in

Appendix B at the conclusion of this opinion.

printed in Appendix A hereto) give the EPA the

statutory authority to mandate the treatment of

wastes to levels beyond those at which the wastes

present the characteristics that caused them to be

deemed hazardous. The EPA provided adequate no-

tice of its intent to bar dilution of certain hazardous

wastes at water treatment facilities that meet the

standards of the Clean Water Act facilities. The reg-

ulations provide sufficient guidance as to how this

part of the rule will work, and the distinction drawn

between types of hazardous wastes appears reason-

able. The challenge by the individual companies to

testing protocols established in this rule is rejected.

The procedures are both clear and reasonable.

Several environmental organizations, as well as the

Hazardous Waste Treatment Council, an association

representing companies that treat hazardous waste

(collectively, ““NRDC petitioners’), present different

objections. They assert that (1) the new rule’s “de-

activation” treatment standard impermissibly allows

the dilution, rather than treatment with specified

technologies, of many characteristic wastes prior to

land disposal; (2) the rule authorizes placement of

untreated formerly characteristic wastes in surface

impoundments within Clean Water Act treatment

systems, or into underground injection wells, in viola-

tion of RCRA; (3) it arbitrarily created treatment

standards for chromium and lead wastes; and (4)

the rule provides an exception to treatment stand-

ards for wastes burned in industrial furnaces along

with wastes exempted by the Bevill Amendment that

violates that provision. In addition, the Council and

Chemical Waste Management, Inc., a large waste dis-

posal company, challenge certain testing procedures

imposed by the regulations as impermissibly vague.

The petitions brought by NRDC petitioners are

granted in part and denied in part. Under the stat-

ute, dilution of characteristic hazardous wastes may

constitute treatment, but only if no hazardous con-

stituents are present following dilution that would

endanger human health or the environment. The

EPA concedes that dilution will not attain this result

for certain characteristic wastes. For others, it has

not made clear that dilution will meet the require-

ments for treatment. The standard is therefore va-

cated as to those wastes. The dilution of wastes in

Clean Water Act facilities is acceptable so long as

the toxicity of the waste discharged from the facil-

ity is minimized or eliminated consistent with RCRA.

Similarly, disposal of wastes in underground injec-

tion wells may occur as long as the hazardous char-

acteristics have been eliminated and any health and

environmental dangers posed by hazardous constitu-

ents of the wastes are minimized.

We remand the lead and chromium standards be-

cause the EPA appears to have relied on data that

does not support its conclusions. We also remand the

exemption from regulation under Subtitle C of

RCRA of wastes burned with wastes exempted under

the Bevill Amendment for consideration in an on-

going rulemaking addressing that question. Finally,

Chemical Waste Management’s petition for review of

test compliance procedures is denied. Testing proce-

dures will be embodied in permits. Uncertainties over

the standards can be resolved in the permit-writing

process.

II.

III.

IV.

TABLE OF CONTENTS

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Industry Petitioners’ Challenge to the Treat-

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NRDC Petitioners’ Challenge to Deactivation

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B. Deep Injection Wells Regulated Under the

Safe Drinking Water Act ............000002.2.0.....

BER IEG ABN a a See BFE

2. The Treatment Standard for Lead Waste-

iS a RS Re RIA at oor

C. The Fertilizer Institute’s Challenges to the

a eer

1. Notice and Opportunity to Comment Rie

2. Is the Rule Impermissibly Vague? ____

3. Should Rule 268.3(b) Include Listed

Wastes for which the EPA has Developed

Concentration-Based Treatment Stan-

RAE Fin, ST IER 2A A, a TE

ee ice

A. Corroborative Testing BE pt Cs A OR

B. Treatment Standards for Chromium Wastes..

C. Exemption of Waste Burned in ‘“Bevill’”’

8 gst cet ah RYE Ct Le AIO aca is POC

I. STATUTORY AND REGULATORY BACKGROUND

Subtitle C of the Resource Conservation and Re-

covery Act, 42 U.S.C. §$ 6921-6939b (1988), sets

out a comprehensive regulatory system governing

the treatment, storage, and disposal of hazardous

wastes. Wastes are deemed hazardous in one of two

ways: They possess one of the four hazardous char-

acteristics identified by the EPA in 40 C.F.R. Part

261, Subpart C (“characteristic wastes’), see id.

§ 261.3(a) (2) (i) (1991), or have been found to be

hazardous as a result of an EPA rulemaking. See

id. Part 261, Subpart D (“listed wastes”).

The four characteristics identified as hazardous

are ignitability, corrosivity, reactivity, and extraction

procedure (“EP”) toxicity. The hazards presented

by ignitable, corrosive, and reactive (“ICR”) wastes

are primarily, though not exclusively, the results of

their physical properties. See 45 Fed. Reg. 33,066,

33,107-10 (1980). EP characteristic wastes contain

toxic constituents. 7d. at 33,107-12. These wastes

remain hazardous until they cease to exhibit any of

the characteristics identified in Subpart C. See 40

C.F.R. § 261.3(d)(1). Characteristic wastes com-

prise over fifty percent of all the hazardous wastes

generated in the United States each year.

Although the EPA may list a waste if it possesses

one of the four characteristics described above, in

practice it will only list specific wastes that are either

acutely hazardous or possess high levels of toxic con-

stituents. See id.; 45 Fed. Reg. at 33,105-07. A

listed waste loses its hazardous status only after a

petition for its “delisting” is approved by the EPA

in a notice-and-comment rulemaking. See 40 C.F.R.

hacer nnereae

—s

10a

§§ 260.20, 260.22: Shell Oil Co. ». EPA, 950 F.2d

741, 749 (D.C. Cir. 1991).

“Once a waste is listed or identified as hazardous,

its subsequent management is regulated” under sub-

title C of RCRA. American Petroleum Inst. v. EPA,

906 F.2d 729, 733 (D.C. Cir. 1990) (“API”). The

waste enters RCRA’s “cradle-to-grave” regulatory

system; and “the waste’s treatment, storage, and dis-

posal is usually regulated by permit.” American

Mining Congress v. EPA, 907 F.2d 1179, 1182 (D.C.

Cir. 1990) (“AMC IT’); see also RCRA §S§ 3001-

3004, 42 U.S.C. $$ 6921-6924. The management of

a hazardous waste continues “until such time as it

ceases to pose a hazard to the public.” Shell Oil, 950

F.2d at 754.

Because “certain classes of land disposal facilities

are not capable of assuring long-term containment

of certain hazardous wastes,” RCRA § 1002(b) (7),

42 U.S.C. § 6901(b) (7), Congress amended subtitle

C in 1984 to prohibit land disposal of many hazard-

ous wastes. The Hazardous and Solid Waste Amend-

ments of 1984, Pub. L. No. 98-616, 98 Stat. 3221

(1984) (“1984 Amendments’), gave the EPA sig-

nificant authority to regulate land disposal. The

statute expressed a general policy preference that

“reliance on land disposal should be minimized or

eliminated.” RCRA § 1002(b) (7), 42 U.S.C. § 6901

(b) (7). A prohibition on disposal would apply un-

less the waste is treated so as to minimize the short-

term and long-term threats to human health and the

environment posed by toxic and hazardous constit-

uents, RCRA § 3004(m), 42 U.S.C. § 6924(m), or

unless the EPA finds that no migration of hazardous

constituents from the facility will occur after dis-

lla

posal. Id. § 3004(g) (5), 42 U.S.C. § 6924(g) (5);

see also Hazardous Waste Treatment Council v. EPA,

886 F.2d 355, 357 (D.C. Cir. 1989), cert. denied,

111 S. Ct. 189 (1990) (“HWTC IIT’).

The 1984 Amendments specifically required the

EPA to follow a phased schedule to implement the

land disposal ban. They forbade the land disposal of

hazardous wastes containing solvents and dioxins af-

ter November 8, 1986. RCRA § 3004(e), (42 U.S.C.

$ 6924(e). A select list of other wastes were barred

from land disposal after July 8, 1987 (“California

list”? wastes). Id. § 3004(d), 42 U.S.C. § 6924(d).

Finally, the amendments ordered the Agency to rank

all remaining hazardous wastes on the basis of their

intrinsic hazard and the volume generated annually

and to divide the list into three parts. Jd. § 3004(¢)

(4), 42 U.S.C. § 6924(g) (4). The Administrator was

then charged with the task of promulgating final regu-

lations for each third of the list. See id. $ 3004(g)

(5), 42 U.S.C. § 6924(g) (5). Unless the Adminis-

trator promulgated regulations for wastes in the last

third of the list by May 8, 1990, they could not be

land disposed. /d. § 3004(g) (6) (C), 42 U.S.C. § 692°

(g) (6) (C).

Under the 1984 Amendments, the final regulations

must

prohibit[] one or more methods of land disposal

of the hazardous wastes listed on such schedule

except for methods of land disposal which the Ad-

ministrator determines will be protective of hu-

man health and the environment for as long as

the waste remains hazardous .... For the pur-

poses of this paragraph, a method of land disposal

may not be determined to be protective of human

health and the environment (except with respect

12a

to a hazardous waste which has complied with the

pretreatment regulations promulgated under sub-

section (m) of this section) unless, upon applica-

tion by an interested person, it has been demon-

strated to the Administrator, to a reasonable

degree of certainty, that there will be no migra-

tion of hazardous constituents from the disposal

unit or injection zone for as long as the wastes

remain hazardous.

RCRA § 3004(g) (5), 42 U.S.C. § 6924(¢) (5). The

Administrator must also promulgate treatment stand-

ards, compliance with which will authorize land

disposal, at the same time he publishes the land ban.

The treatment regulations shall

specify[] 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 short-term and long-term threats

to human health and the environment are mini-

mized.

Id. § 3004(m) (1), 42 U.S.C. § 6924(m) (1).

The regulations under review implement the land-

ban program for the last third of the ranked list of

wastes, the “third-third.” They largely consist of

treatment standards for characteristic wastes. See

55 Fed. Reg. 22,520-720 (1990). The final rule also

modifies regulations governing characteristic wastes

that are managed in treatment systems regulated

through National Pollutant Discharge Elimination

System permits issued under the Clean Water Act as

well as regulations affecting those disposed of in

underground injection wells regulated under the Safe

13a

Drinking Water Act. The rule establishes a variety of

compliance requirements as well.

Fourteen petitions for review were filed and con-

solidated into this proceeding. Petitioners divided the

case into three groups of issues for purposes of brief-

ing and argument. The first focuses on industry peti-

tioners’ challenge to standards mandating treatment

of characteristic wastes beyond the point at which

they cease to display hazardous characteristics and on

NRDC petitioners’ challenge to dilution as a method

of treatment. The second centers on the Clean Water

Act and underground injection well questions. The

third consists of the remaining issues. This opinion

adopts the same approach.

Il. TREATMENT STANDARDS FOR CHARACTERISTIC

WASTES

A. Proposed Rule

As described above, at the outset of the RCRA

program, the EPA identified four characteristics as

hazardous: ignitability, corrosivity, reactivity, and

EP toxicity. In its proposed rules, and in the final

regulations, the Agency divided characteristic wastes

into subcategories, suggesting treatment standards or

levels for each subcategory. For some of these, the

EPA proposed treatment to reduce the presence of the

characteristic below the level at which the waste was

defined as hazardous. For example, a waste is con-

sidered corrosive, and therefore hazardous, if it is

aqueous and has a pH of less than two or greater

than 12.5. The proposed rule required treatment that

would result in a pH between six and nine. See 54

Fed. Reg. 48,372, 48,422 (1989). For other sub-

categories, however, the EPA suggested treatment to

a eee

l4a

the characteristic level and no further. See id. at

48,420-26 (setting treatment levels and standards).

The Agency stated that it possessed the authority to

compel treatment below characteristic levels. See 54

Fed. Reg. at 48,419. It took note of the argument that

the characteristic levels represent the limit of subtitle

C authority—that the Agency had no power to regu-

late a waste where the characteristic had been brought

below the level deemed hazardous. /d. at 48,490. The

Agency believed, however, that section 3004(m) ex-

tended its authority beyond that point. “[O]nce

wastes become subject to section 3004(m), they re-

main subject to the requirements of that section until

the section 3004(m) standard is satisfied.” Jd. The

EPA concluded that it was directed by the statute to

require a waste that is hazardous at the point of

generation and is destined for land disposal to “be

treated by methods which substantially reduce toxicity

and minimize threats to human health and the en-

vironment.” Jd.

As to methods of treatment, the proposed rule

largely followed the judgment made by the EPA in

previous land-ban program rulemakings. In those

earlier rules, the EPA determined that treatment

would be accomplished through the use of “best dem-

onstrated available technologies.” See, e.g., 51 Fed.

Reg. 40,572, 40,578 (1986) (solvents and dioxins) ;

538 Fed. Reg. 31,138, 31,142 (1988) (first-third

wastes). The proposed rule specified the particular

technology to be used in the treatment of most ICR

wastes. See 54 Fed. Reg. at 48,420-26. For a handful

of others, the Agency offered a measure of flexibility

by creating a “deactivation” category of treatment.

According to the proposals, the EPA had ‘determined

15a

that within [several ICR subeategories ]there appear

to be a further variety of different waste groups,

each with a certain degree of uniqueness with respect

to hazard and handling requirements.” Id. at 48,419.

Therefore, while the Agency recommended a number

of methods, it proposed to allow generators or treaters

of those wastes to select the appropriate method of

treatment. Jd. at 48,419-20.

In implementing the land-ban program for solvents

and wastes containing dioxins, the EPA barred dilu-

tion as an alternative for “adequate treatment.” See

51 Fed. Reg. at 40,639. As codified, the rule stated

that

no generator, transporter, handler, or owner or

operator of a treatment, storage, or disposal

facility shall in any way dilute a restricted waste

as a substitute for adequate treatment to

achieve compliance with subpart D of this part

[setting forth treatment standards], . .. or to

circumvent a land disposal prohibition imposed

by RCRA section 3004.

40 C.F.R. § 268.3(a) (1989).

At several points in the proposed third-third rule,

the EPA reaffirmed its decision that a generator or

treater might not dilute wastes to escape the dictates

of the land disposal program. In its discussion of

ignitable wastes, the Agency stated that “a prohib-

ited form of dilution that is used to remove a charac-

teristic from a prohibited hazardous waste would be a

violation of the dilution prohibition in [40 C.F.R.]

section 268.3.” 54 Fed. Reg. at 48,422. Among the

EPA’s concerns was the possibility that dilution of

ienitable wastes would lead to dangerous emissions of

volatile organic compounds, a problem that could be

16a

avoided by using other treatment methods. Id. “Ac-

cordingly, the Agency believes that dilution should

not be a legitimate method for treating ignitable

wastes.” Jd.

The EPA proposed a similar bar with regard to

reactive wastes: “[DJilution of reactive wastes should

not automatically be considered to be a legitimate form

of treatment.” Jd. at 48,426. It proposed that re-

active cyanides and sulfides be treated like any toxic

waste; ‘“‘[w]ith respect to other reactive wastes, most

cannot be diluted without violent reaction so that

dilution is not a viable management alternative[.]”’

Id.

Finally, the EPA suggested that corrosives be

treated by neutralization, not dilution, to alter their

pH. Jd. at 48,422-23. According to the Agency, dilu-

tion would require the use of large amounts of water

and would create a greater volume of waste; more-

over, dilution “does not treat or remove hazardous

constituents in the wastes. 7d. at 48,423.

More broadly, the EPA expressed its

concern, echoing Congress’ concern in indicating

that dilution to avoid proper treatment was im-

permissible, [] that individual prohibited wastes

[hazardous wastes destined for land disposal]

not be mixed with larger volumes of other wastes

(whether prohibited or not to meet treatment

standards without undergoing treatment that sub.

stantially reduces the prohibited wastes toxicity

or mobility... .

Consequently, it appears to the Agency that

any dilution that fails to meet the standard in

§ 3004(m) of substantially reducing the prohib-

————— ltt—(i‘OSCS*SY

17a

ited waste’s toxicity or mobility is impermissible.

... Further, with respect to organic constitu-

ents, ‘reduction of toxicity’ means actual removal

of or chemical change to the constituent.

Id. at 48,494 (citation omitted). But the Agency

did seek comments on “whether dilution can be used

as a means of supplanting a section 3004(m) treat-

ment standard by being used to render a prohibited

waste non-hazardous in lieu of actually treating the

prohibited hazardous waste prior to land disposal.”

Id. at 48,495.

B. Final Rule

In the final rule, the EPA revised many of its

proposed treatment standards for ICR and toxic

characteristic wastes. The EPA, however, did not

back away from its basic position that it could require

treatment below characteristic levels. Because “Con-

gress has given apparently conflicting guidance on

how the Agency should address land disposal prohibi-

tions for characteristic wastes,” the EPA ‘believes

it has authority to reconcile these potential conflicts

and to harmonize statutory provisions to forge a

coherent regulatory system.” 55 Fed. Reg. at 22,651.

The EPA agreed with many participants in the com-

ment period that “one permissible construction of the

language in section 3004(g)” (which requires the

promulgation of regulations “prohibiting . . . meth-

ods of land disposal of the [listed] hazardous wastes’’ )

is that subtitle C rules applied only to hazardous

wastes, and therefore the applicability of the land dis-

posal regulations must be judged at the moment of

disposal. 55 Fed. Reg. at 22,652. Ultimately, the EPA

concluded that Congress did not state when the status

18a

of the waste should be evaluated for purposes of the

ban on land disposal; therefore, the EPA could choose

to regulate the waste “at the point of generation or at

the point of disposal (and possibly at some other

point or combination of the two).” Jd.

While viewing its authority broadly, the EPA de-

cided to exercise it sparingly:

Today’s rule reflects a decision to take limited,

but nonetheless significant, steps within the point

of generation framework. As a general matter,

the Agency believes that the goals of [the pro-

gram] may require application of standards

which go beyond the characteristic level . . . in

some future cases.

Id. at 22,654. The final regulations call for treatment

below characteristic levels for only a handful of

wastes. Among ICR wastes, ignitable liquids with

high total organic carbons (a subset of the subcate-

gory of ignitable liquids for which the proposed rule

required treatment to below characteristic levels by

technology), see id. at 22,543-44, and reactive cya-

nides, see id. at 22,550-51, would be subject to en-

hanced treatment. The Agency backed away from its

original plan to mandate enhanced treatment for

corrosive characteristic wastes.

The EPA determined that for most ICR wastes,

treatment to characteristic levels would be sufficient.

The Agency found upon review that

[t]he environmental concerns from the proper-

ties of ignitability, corrosivity, and reactivity are

different from the environmental concern from

EP toxic wastes. Toxic constituents can pose a

cumulative impact on land disposal even where

19a

waste is below the characteristic level. Where

wastes pose an ascertainable toxicity concern...

the Agency has developed treatment standards

that address the toxicity concern and (in effect)

require treatment below the characteristic level.

.. . Otherwise, treatment that removes the prop-

erties of ignitability, corrosivity, and reactivity,

fully addresses the environmental concern from

the properties themselves.

Id. at 22,655.

The EPA also retreated from its emphasis on tech-

nology-based treatment in the final regulations, alter-

ing its position on the use of dilution as a method

of treatment:

In all cases, the Agency has determined that for

non-toxic hazardous characteristic wastes, it

should not matter how the characteristic prop-

erty is removed so long as it is removed. Thus,

dilution is an acceptable treatment method for

such wastes.

Id. at 22,532. The Agency included dilution within

the ambit of the “deactivation” treatment standard.

The final rule defined the standard as ‘“[d]ecativa-

tion to remove the hazardous characteristics of a

waste due to its ignitability, corrosivity, and/or re-

activity.” Jd. at 22,693. As long as these character-

istics are removed, any method can be employed un-

der the final regulations. The EPA allowed full dis-

cretion among specified technological methods of

treatment (such as neutralization or incineration) as

well as dilution with water or other wastes. For

toxic wastes, the prohibition on dilution remained.

See id. at 22,656.

betel

20a

The Agency admitted that it

believes the mixing of waste streams to elimi-

nate certain characteristic[s] is appropriate

treatment for most wastes which are purely cor-

rosive, or in some cases, reactive or ignitable.

As a general matter, these are properties which

can effectively be removed by mixing.

Id. (emphasis added). It further conceded that

this approach does not fully address the poten-

tial problem of toxic constituents that may be

present in such wastes, nor encourages minimi-

zation or recovery of non-toxic characteristic

hazardous wastes. EPA has determined that

these potential problems should be addressed, if

at all, in other rulemakings ... and are too

difficult to resolve in this proceeding, given the

extraordinary pressures and limited review time

imposed by the May 8 [1990] statutory deadline.

Id. at 22,665-66. Only in three subcategories of ICR

wastes did the EPA mandate the use of technological

treatment: reactive sulfides, 57 Fed. Reg. 8,086,

8,089 (1992) (technical correction to third-third

rule) ; reactive cyanides, 55 Fed. Reg. at 22,551; and

ignitable liquid nonwastewater wastes, containing

more than ten percent total organic compounds, id. at

22,544. For all corrosive wastes, other ignitable

liquid wastes (nonwastewaters with low total organic

compounds and ignitable wastewaters), ignitable

compressed gases, ignitable reactive wastes, explosive

wastes, water reactives, and other reactives dilution

would be acceptable. Jd. at 22,543-53.

C. Standard of Review

Industry and NRDC petitioners challenge the third-

third rule’s treatment standards as incompatible with

2la

RCRA. We typically analyze such claims under the

familiar standard of Chevron U.S.A. Ine. v. NRDC,

467 U.S. 857 (1984). Under Chevron, unless Con-

gress has spoken directly to these questions, the

EPA’s determinations are entitled to deference, if

reasonable. Jd. at 842-43.

D. Industry Petitioners’ Challenge to the Treat-

ment Standards

Industry petitioners contend that RCRA does not

provide authority for the EPA to mandate treatment

of characteristic wastes after their ignitability, cor-

rosiveness, reactivity, or EP toxicity has been ad-

dressed. They make a straightforward argument:

Subtitle C regulations attach to a waste only when

it is hazardous. The moment a waste ceases to meet

the regulatory definition of a hazardous waste, the

EPA loses its authority to regulate further. Thus,

in industry petitioners’ view, RCRA’s cradle-to-grave

system covers waste only if it remains hazardous

thoughout its life and at the moment of its burial.

Industry petitioners point to a welter of provisions

in RCRA where the words “hazardous waste” are

used as proof that the statute applies only to waste

defined as hazardous. Subtitle C, they explain, is en-

titled “Hazardous Waste Management,” and the en-

tire subtitle addresses that problem—the manage-

ment of hazardous waste. They add that some state-

ments by the EPA have suggested the same reading

of the statute. See, e.g., 54 Fed. Reg. 1,056, 1,093

(1989) (a waste that no longer exhibits a hazardous

characteristic “is no longer subject to the require-

ments of Subtitle C of RCRA’”’).

In their view, the 1984 Amendments did not change

this boundary. They point out that land disposal is

22a

defined in part as “any placement of such hazardous

waste in a landfill, [or] surface impoundment,”

RCRA § 3004(k), 42 U.S.C. § 6924(k); that section

3004(g) similarly “prohibit[s] one or more methods

of land disposal of [] hazardous wastes,” id. § 6924

(g) (5); and, finally, that section 3004(m) author-

izes land disposal of hazardous waste that has been

treated, suggesting to industry petitioners that the

provision specifically authorizes only the disposal of

wastes that remain hazardous after treatment. Thus,

they conclude, the disposal restrictions can apply only

to wastes that are hazardous at the moment of dis-

posal.

In its brief, the EPA reiterates the rationales stated

in its final rule: The key provisions of the land-ban

program, sections 3004(g) (5) and (m), can be read

as allowing the Agency to apply land disposal re-

strictions at any time it wishes; those provisions at

a minimum contemplate activity that occurs before

land disposal; section 3004(m)(1) requires treat-

ment to avoid the prohibition on land disposal; and

treatment must take place, by definition, before dis-

posal occurs. This reading, the EPA adds, dovetails

with the concern expressed in the report accompany-

ing the Senate version of the 1984 Amendments, that

hazardous waste not be diluted and then disposed of

in landfills. See S. Rep. No. 284, 98th Cong., 1st Sess.

17 (1983) (‘Senate Report’). The Agency reasons

that the subtitle C program can attach at the point of

generation, and the broad language of section 3004

(m)(1) allows additional treatment to remove risks

posed by wastes beyond those inherent in the char-

acteristic.

To succeed in their Chevron step one argument,

industry petitioners must show that Congress “has

23a

directly spoken to the precise question at issue” and

has “unambiguously expressed [its] intent.” 467

U.S. at 842-43. We find little support in the statute

or our prior decisions for the notion that Congress

mandated the line industry petitioners draw. These

petitioners believe that the definition of a hazardous

waste acts as a revolving regulatory door, allowing

continual entrance and egress from RCRA’s require-

ments. The key provisions of the statute support a

contrary view—that hazardous waste becomes subject

to the land disposal program as soon as it is gen-

erated.

RCRA directs the Administrator to “promulgate

regulations identifying the characteristics of hazard-

ous waste . . .which shall be subject to the provisions

of this subchapter.” RCRA § 3001(b) (1), 42 U.S.C.

§ 6921(b) (1). This appears to bring a waste within

the statutory scheme once it is identified as hazardous.

Under the dictates of the 1984 Amendments, the Ad-

ministrator “shall promulgate regulations . . . [ban-

ning land disposal for] any hazardous waste identified

or listed under section 6921 of this title.” RCRA

S 3004(g) (4), 42 U.S.C. § 6924(g) (4). Again, the

focus is on the identification of a waste as hazardous.

This reading of the statute is consistent with our

prior interpretations. In API, we explained that

3 Industry petitioners suggest that the EPA’s decision to

mandate treatment of some wastes below characteristic levels

is due no deference because the EPA made “prior inconsistent

statements” during the rulemaking that cut against its cur-

rent position. See Brief for Industry Petitioners at 24-25. As

our analysis makes clear, we find that the statute compels

the EPA, in some instances, to require treatment beyond re-

moval of the characteristic of hazard. Therefore, we do not

address industry’s contention.

24a

“Tojnce a waste is listed or identified as hazardous,

its subsequent management is regulated.” API, 906

F.2d at 733. After the 1984 Amendments, we added,

regulation of the waste included the prohibitions of

section 3004. Jd. In Shell Oil, we noted that the

power to manage waste is created ‘“‘[a]t [the] point”

a waste is defined as hazardous and discarded. Shell

Oil, 950 F.2d at 754. Once in the system, we found

that the power to manage hazardous waste provided

by RCRA gave the EPA the authority to regulate

waste until “it ceases to pose a hazard to the public.”

Id.; see also RCRA § 1004(7), 42 U.S.C. § 6903(7)

(defining ‘hazardous waste management’). We

therefore deferred to the EPA’s determination that

resource recovery from hazardous waste came within

the Agency’s subtitle C authority.

Industry petitioners nevertheless contend that we

adopted the exact position they now advocate in

American Mining Congress v. EPA, 824 F.2d 1177

(D.C. Cir, 1987) (“AMC I’). To be sure, in AMC J,

we stated that the EPA’s authority, in the first in-

stance, extends only to waste that is identified as

hazardous, id. at 1179, and that Congress took care

in drafting the definition of solid waste to reflect its

concern over the reach of the EPA’s authority, id. at

1188-89 and n.17. But, as we emphasized in Shell

Oil, the definitions of solid and hazardous wastes pro-

vide the keys to entrance into the RCRA system;

‘“To]nly materials that meet both definitions will be-

come within the [RCRA] ‘cradle-to-grave’ regulatory

scheme,” Shell Oil, 950 F.2d at 754 (emphasis added) ;

and we also stated that once within the system, the

waste will remain there so long as it poses a threat

to the public health and safety. Jd. AMC I] turned

25a

on the question of whether secondary materials im-

mediately reused within an industrial process had

been “discarded” under the terms of RCRA. We

concluded that they had not. AMC I, 824 F.2d at

1185-87. Our decision in that case stands for no

more. See Shell Oil, 954 F.2d at 755-56.

The 1984 Amendments also provide the EPA with

the authority to mandate treatment past the point at

which a characteristic is removed. Section 3004 (g)

(5) requires the Administrator to promulgate regula-

tions prohibiting land disposal of hazardous wastes

“except with respect to a hazardous waste which has

complied with the pretreatment regulations promul-

gated under subsection (m) of this section.” 42

U.S.C. § 6924(¢)(5). Subsection (m)(1), in turn,

calls on the Administrator to

specify[] 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 short-term and long-term threats to

human health and the environment are mini-

mized.

RCRA § 3004(m) (1), 42 U.S.C. § 6924(m) (1). The

requirement that treatment “substantially diminish

the toxicity” or substantially reduce the likelihood of

migration of hazardous constituents suggests concerns

that go beyond the characteristics identified in 40

C.F.R. Part 261, subpart C. Similarly, in concluding

that the EPA had the authority to require technolo-

gies that go beyond the elimination of hazardous

characteristics, we have noted that “minimize” offers

a broad mandate: “To ‘minimize’ something is, to

quote the Oxford English Dictionary, to ‘reduce [it]

26a

to the smallest amount, extent, or degree.’” HWTC

ITI, 886 F.2d at 361.

In HWTC III, the Chemical Manufacturer’s Associ-

ation (“CMA”) attacked treatment standards for

solvents under the land disposal program because the

EPA required treatment of all solvents, not simply

those deemed unsafe. See id. at 361. The CMA ar-

gued that this regime could result in treatment “below

established levels of hazard,’ and therefore was an

unreasonable interpretation of the Act. /d. at 362.

We disagreed, noting that section 3004(m) demands

that treatment minimize risks to health and the en-

vironment. Treatment might be unreasonable, we

added, if the EPA required treatment of wastes that

“nosed no threat to human health or the environ-

ment.” /d. at 363. That was not the case in HWTC

III, nor is it true here.

We conclude that, in combination, sections 3004 (¢)

(5) and (m) provide the EPA with authority to bar

land disposal of certain wastes unless they have been

treated to reduce risks beyond those presented by the

characteristics themselves. We also find the Agency’s

assertion of regulatory authority over the wastes

from the moment they are generated to be “based on

a permissible construction of the statute.” Chevron,

467 U.S. at 843.

E. NRDC Petitioners’ Challenge to Deactivation

Treatment Standard

NRDC petitioners ask this court to vacate the de-

activation treatment standard as applied to ICR

wastes because it authorizes the dilution of these

wastes to eliminate their ignitability, corrosiveness,

or reactivity rather than mandating use of technologi-

27a

cal treatment. NRDC petitioners rely on the language

of section 3004(m) (1), statements in the legislative

history of the 1984 Amendments, and the overall

structure of the RCRA program as support for their

position that treatment does not include dilution.

They claim that some form of technology must be used

to treat wastes in all instances.

They also contend that diluticn fails to satisfy the

statutory requirement that treatment minimize short-

term and long-term threats to human health and the

environment, or to substantially diminish the toxicity

of the waste. In their view, the removal of these char-

acteristics through dilution only affects the short-term

risk that the waste will manifest that property; it does

not address the threats posed by the hazardous or-

ganic and inorganic constituents of those wastes.

NRDC petitioners also assert that the Agency’s in-

terpretation of RCRA fails Chevron’s second step

because the statute does not permit a plea of time

pressures as a reason for failing to require treat-

ment at the levels mandated by section 3004(m). See

55 Fed. Reg. at 22,665-66.

We believe that dilution can, in principle, constitute

an acceptable form of treatment for ICR wastes. We

do not read the 1984 Amendments as mandating the

use of the best demonstrated available technologies

(“BDAT”) in all situations. To reiterate, section

3004(m) (1) directs the Administrator to

specify[] 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 short-term and long-term threats to

human health and the environment are minimized.

28a

42 U.S.C. § 6924(m)(1). NRDC petitioners insist

that under the plain terms of this provision, the de-

activation standard fails because dilution is not a

“method of treatment.” Although they acknowledge

that the statutory definition of “treatment” is broad

enough to encompass dilution, see RCRA § 1004(34),

42 U.S.C. § 6903(34), they maintain that Congress

had a more exacting criterion in mind when it enacted

section 3004(m).

We agree that the section imposes an exacting

standard: It requires that treatment pricr to land

disposal ‘“‘substantially diminish the toxicity of the

waste or substantially reduce the likelihood of migra-

tion 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)

(1), 42 U.S.C. §$ 6924(m)(1). But this provision

does not bar dilution as a means of treating ICR

wastes; instead, it defines the purposes that a method

of treatment must achieve. Any treatment that meets

those objectives is permissible. When read against

RCRA’s broad definition of treatment, we cannot say

Congress clearly barred dilution as an acceptable

methodology. See Chevron, 467 U.S. at 842-43.

NRDC petitioners advert to a number of statements

in the legislative history that they believe make clear

Congress’s unexpressed intent to prohibit dilution as

a form of treatment in all cases. They cite, for ex-

ample, the committee report accompanying the Sen-

ate version of the 1984 Amendments, which notes

that hazardous waste should be “transformed to a less

hazardous chemical form through treatment.” Senate

Report at 17. More directly, the report states:

29a

The dilution of wastes by the addition of other

hazardous wastes or any other materials during

waste handling, transportation, treatment, or

storage is not an acceptable method of treatment

to reduce the concentration of hazardous constitu-

ents. Only dilution which occurs as a normal

part of the process that results in the waste can

be taken into account in establishing concentra-

tion levels.

Id. These petitioners also quote from Senator Moyni-

han’s statement explaining the floor amendment that

became section 3004(m): “The requisite levels o[r]

methods of treatment established by the Agency

should be the best that has been demonstrated to be

achievable.” 130 Cong. Rec. 20,803 (1984) (state-

ment of Sen. Moynihan). They infer from this that

only treatment with technology will meet the standard

of section 3004(m).

We are unpersuaded. The Senate committee version

of the 1984 Amendments, which the committee report

addresses, mandated the treatment of EP toxic wastes

among the many others specified in the legislation. It

did not require the treatment of ICR wastes. See

Senate Report at 17-18. The strong statements cau-

tioning against dilution as a means of treatment must

be read that context. Similarly, Senator Moyni-

han’s statement referred to the particular problem of

highly mobile, highly toxic wastes. See 130 Cong.

Rec. 89,178. These citations to legislative history do

not show that Congress spoke directly to the dilution

of ICR wastes. See Chevron, 467 U.S. at 842-43.

We are more troubled by the question whether the

dilution of certain ICR wastes will satisfy section

=> 0

30a

3004(m). Treatment must meet the standards estab-

lished by that section, and its requirements are clear:

It must remove the characteristic and reduce the pres-

ence of hazardous constituents when those constituents

are present in sufficient concentrations to pose a threat

to human health or the environment. The EPA’s reg-

ulations “must be fully consistent with” those re-

quirements. NLRB v. United Food & Commercial

Workers Union, Local 23, AFL-CIO, 484 U.S. 112,

123 (1987). We find it unclear whether dilution is

fully consistent with section 3004(m)’s treatment

which the EPA has proscribed deactivation.

As we have explained, the proposed rule pointed to

significant problems that could arise if dilution was

accepted as a means of treating IRC wastes. In the

final regulations, the Agency found that deactivation

‘addresses the environmental concern from the prop-

erties themselves.” 55 Fed. Reg. at 22,655. The EPA

admitted, however, that “the characteristic level is

only one indicator of hazard and, thus, removal of the

specific characteristic is not the same as assuring that

the waste is safe.” Jd. at 22,651. It then acknowl-

edged “that this approach does not fully address the

potential problem of toxic constituents that may be

present in [ICR] wastes, nor encourage[] minimiza-

tion ... of non-toxic characteristic hazardous wastes.”

Id. at 22,665. The Agency’s brief contains a similar

admission. Brief for Respondent at 96-97.

Unfortunately, these confessions are not a substi-

tute for a rule conforming to the statute’s command.

We conclude that the deactivation standard, in its

present form, is permissible only in the case of cor-

rosive wastes; and then only so long as they do not

contain hazardous constituents that, following dilu-

| 31a

tion, would themselves present a continuing danger to

human health or the environment.

1. Ignitable Wastes

At oral argument, counsel for the EPA conceded

that some ignitable wastes subject to the deactiva-

tion standard include hazardous or toxic constituents

that will remain after dilution, perhaps at sufficient

levels to pose a risk to human health and the environ-

ment. See also Reply Brief for NRDC petitioners at

12-14 (ignitable wastes have significant hazardous

constituents) ; EPA, Final BDAT Background Docu-

ment (May 1990), at 2-2 and 2-3, reprinted in Joint

Appendix (“J.A.”) at 456-57 (same). Further, in

the proposed rule, the EPA barred dilution of all

ignitable wastes because of the risk of emissions of

volatile organic compounds during dilution and the

possibility that the waste would regain its ignitability

after dilution. See also BDAT Background Docu-

ment at 2-10, reprinted in J.A. at 464 (“If the ignit-

able wastes are diluted, [volatile organic compounds]

will ordinarily be emitted in concentrations far ex-

ceeding those emitted by treatment processes in which

these volatiles are destroyed.”’).

The final regulations suggested a number of tech-

nology-based treatment methods that might be used

for ignitable wastes, but in the end authorized dilu-

tion if it would remove the characteristic alone, ex-

cept for ignitable wastes including more than ten

percent total organic compounds. In its brief, the

Agency stated that the problem of emissions and the

possibility that the waste would regain its ignitabil-

ity were not significant, that some dilution prior to

treatment would be beneficial, and that the problem

of VOC emissions, if any occur, would be “best ad-

J | | ld

32a

dressed by establishing air emission limitations in the

future.”’ Brief for Respondent at 93.

In view of the EPA’s position that treatment pur-

suant to section 3004(m) requires the removal of a

waste’s hazardous characteristic and the reduction of

other hazardous constituents, and the Agency’s con-

cessions that constituents are present in some ignit-

able wastes subject to the deactivation standard, we

vacate this part of the rule. To conform with its own

reading of section 3004(m), the Agency must iden-

tify the ignitable wastes that include, after dilution,

sufficiently high levels of hazardous constituents to

pose a risk to human health or the environment, and

propose a method of treatment that will deal with

these threats. In addition, the Agency must address

the problem of VOC emissions from ignitable wastes

during dilution. The EPA’s statement that it believes

that VOC emissions can be controlled by changes in

operating parameters is inadequate. It must state,

with evidentiary support, that the risk of VOC emis-

sions during dilution is minimal for ignitable wastes

now subject to the deactivation standard, or it must

require actions to minimize that risk.

2. Corrosive Wastes

The EPA asserts in its brief that the sole problem

posed by corrosive wastes is their corrosiveness:

“(T Jhere are no hazardous constituents in the waste.”’

Brief for Respondent at 94. Counsel for the EPA

made essentially the same representation at oral ar-

gument. But NRDC petitioners come to a different

conclusion. They point to the proposed rule, see 54

Fed. Reg. at 48,423 (“The Agency prefers neutraliza-

tion of corrosive wastes over simple dilution because

dilution simply creates a larger volume of wastes but

33a

does not treat or remove hazardous constituents in

the wastes.”’), and a statement from the EPA’s

BDAT Background Document stating that some cor-

rosive wastes do in fact possess hazardous constitu-

ents beyond their potential for corrosion. See BDAT

Background Document at 3-2, reprinted in J.A. at

485 (Typically, corrosive wastes that are disposed

of by deep well injection are likely to contain toxic

organics, whereas landfilled wastes are likely (58

percent) to contain heavy metals.’); see also id. at

3-7, reprinted in J.A. at 490 (residue from neutral-

ized corrosive wastes can exhibit the characteristic

of EP toxicity). NRDC petitioners acknowledge that

corrosive wastes can be treated effectively by mixing

acid and alkaline wastes; but they object to dilution

with water because it will not treat the toxic con-

stituents they claim are present in corrosive wastes.

Reply Brief for NRDC petitioners at 15.

The final regulations themselves are somewhat am-

biguous on the question of the presence of hazardous

constituents. In discussing the deactivation standard

applied to acids and alkalines, the EPA states that

“many [corrosive] wastes also are hazardous for

other reasons, and may require that additional treat-

ment processes be employed besides neutralization,

incineration or recovery.” 55 Fed. Reg. at 22,549.

The Agency also explains that

[cJorrosivity is not defined in the same way EP

Toxic wastes are defined. Corrosivity is not based

on a toxic constituent, where the environmental

concern is mass-loading in the environment. With

respect to the issue of toxics present in these cor-

rosive wastes, EPA notes that if a corrosive waste

also exhibits the toxicity characteristic, it must

34a

be treated to meet the treatment standard for

the toxie constituent as well....

Id. This explanation begs the question of what is

required if the toxic constituent is present in insuffi-

cient quantities to cause the waste to be classified as

EP toxic as well as corrosive, but in sufficient quan-

tities to engage section 3004(m)’s concerns over resid-

ual effects.

We agree with the EPA that dilution can be an

acceptable form of treatment of corrosive wastes. But

in the face of this record, we cannot rely on the asser-

tions made in the EPA’s brief and oral argument that

corrosive wastes pose no hazards other than those

presented by this characteristic. If, however, the facts

will support these assurances, the EPA may cure this

defect and meet the requirements of section 3004(m)

with a statement, backed by evidence, that the corro-

sive wastes subject to the deactivation standard do not

contain hazardous constituents that pose a threat to

human health and the environment. If such a state-

ment may be made, the Agency should be able to

revise its rulemaking prior to the issuance of the

mandate in this case.

3. Reactive Wastes

With regard to reactive wastes, we have a problem

of a different kind. Although, in the final regulations

and in its brief, the EPA spoke of ICR wastes gen-

erally when it confessed that hazardous constituents

might remain in some wastes following deactivation,

see 55 Fed. Reg. at 22,655-56; Brief for Respondent

at 96-97, we find nothing in the proposed or final

regulations to suggest that reactive wastes contain

such constituents, other than reactive cyanides and

35a

sulfides for which the EPA ordered technological

treatment. Nor have NRDC petitioners identified

any. Therefore, we have no basis for vacating the

use of the deactivation standard for the remaining

subcategories of reactive wastes because of the threat

of migration of hazardous constituents.

The EPA, however, has only partially addressed

the problem, raised in the proposed rule, of the effect

of dilution on reactive wastes—that those wastes

could display their reactive characteristic in the proc-

ess of dilution. See 54 Fed. Reg. at 48,426. See also

BDAT Background Document at 4-3, reprinted in

J.A. at 503 (water reactives “(1) react violently with

water; (2) form potentially explosive mixtures with

water; or (3) when mixed with water, generate toxic

gases, vapors, or fumes in a quantity sufficient to

present a danger to human health or the environ-

ment.’’). In the final regulations, based on com-

ments received, the EPA suggested that dilution with

“certain organic liquids” prior to dilution with water

would remove the risk of a violent reaction in the

three subeategories of reactive wastes for which the

deactivation treatment standard is permitted, allow-

ing subsequent incineration or chemical treatment.

55 Fed. Reg. at 22,553. The Agency noted that it

was “not restricting the use of this practice” for any

reactive waste. Id.

The final regulations thus offer no assurance that

dilution of explosive, water reactive, or other reactive

wastes will not create a risk of violent reaction. The

final regulations state that the Agency will not pro-

hibit the practice of diluting wastes with other ma-

terials to reduce the risk of reaction, and suggest

that this might be a useful step to take prior to tech-

36a

nological treatment. This ignores the reality of the

EPA’s deactivation standard: Dilution of these

wastes by any method is permissible if it removes the

characteristic.

We grant, on narrow grounds, the petition for re-

view as to reactive wastes. The Agency must limit

dilution to methods that will curb the risk of violent

reactions, mandate preliminary steps to prevent such

reactions, require a technological treatment, or find,

with the backing of evidence, that there is no sig-

nificant risk of reaction present for any of the three

subcategories of reactive wastes for which deactiva-

tion is a permissible form of treatment.

* * *

Finally, contrary to what the EPA suggests, it will

not suffice that the Agency promises to fully address

certain unresolved problems of hazardous constitu-

ents in future rulemakings. In enacting the 1984

Amendments, Congress imposed very strict deadlines.

Moreover, it has chosen to enforce them by decreeing

that any hazardous waste that is not covered by a

valid regulation within the date specified will be

denied land disposal. We understand the enormous

difficulties that the Agency has undoubtedly faced,

given competing obligations and the complexity of

the task. Nevertheless, we cannot treat the final rule

as other than that—the EPA’s final response to the

task entrusted to it by Congress. Cf. State of Colo-

rado v. Dep’t of Interior, 880 F.2d 481, 485 (D.C.

Cir. 1989) (regulations promulgated by the deadline

“constitute the [Agency’s] complete response in com-

pliance with the statutory requirements.’’).

37a

III. THE EPA’s DILUTION RULES

The issues that we next face focus on challenges to

the EPA’s new dilution permissions, formulated to

integrate RCRA requirements with Clean Water Act

(“CWA”’) treatment systems and deep injection wells

regulated pursuant to the Safe Drinking Water Act

(“SDWA”’). Contemporaneously with the promulga-

tion of the third-third rule, the EPA amended a rule

that had prohibited dilution of wastes in lieu of treat-

ment. Pursuant to the amended rule, centralized CWA

treatment systems may aggregate certain characteris-

tic waste streams; the aggregation results in dilution

that purportedly removes the hazardous characteristic

without treatment. Under this new rule, dilution is

allowed where the EPA has not specified a particular

treatment method and where the CWA system in-

cludes a treatment protocol addressed to the types of

characteristic wastes being aggregated. As a conse-

quence of this rule, CWA treatment facilities may

continue to use unlined surface impoundments as part

of their treatment trains. The EPA also promulgated

a new rule that permits the operators of deep injec-

tion wells to dilute all characteristic wastes, in lieu

of treatment, prior to underground injection.

NRDC petitioners contend that aggregation and

dilution of characteristic wastes in CWA facilities,

in lieu of treatment, is inconsistent with the require-

ments for hazardous waste management under RCRA.

According to the NRDC, under RCRA subtitle C,

solid waste is subject to RCRA’s treatment require-

ments at the moment it exhibits a hazardous charac-

teristic; and the waste may leave the RCRA system

only when treated pursuant to RCRA section 3004

(m)(1) or when disposed in a facility meeting the

38a

no migration requirement of RCRA section 3004(g).

Because surface impoundments are technically “land

disposal” facilities, NRDC petitioners argue that

placement of “decharacterized” wastes in these CWA

impoundments before treatment pursuant to section

3004(m) violates RCRA’s land ban. Similarly, NRDC

petitioners assert that the rule permitting dilution

in lieu of treatment prior to deep well injection vio-

lates RCRA because it allows land disposal of un-

treated hazardous wastes. The Fertilizer Institute

argues that the EPA’s new interpretive guidance for

the dilution prohibitions should be struck down be-

cause they were promulgated without adequate notice

and comment and that the new dilution prohibition is

overly restrictive.

For reasons that will follow, we grant in part and

deny in part the challenges of NRDC petitioners; and

we deny in toto the claims raised by the Fertilizer

Institute. We hold that the new CWA dilution per-

mission is valid where the waste is decharacterized

prior to placement in a CWA surface impoundment

and subsequently treated in full conformity with sec-

tion 3004(m)(1) standards. Aggregation prior to

treatment is not per se unacceptable. Aggregation

itself occurs in tanks and is, therefore, not “land

disposal”; and RCRA does not require treatment be-

fore aggregation.

To the extent that aggregation in tanks and dilu-

tion results in the removal of the waste’s character-

istic and the minimization of the toxicity of the con-

stituents as required under section 3004(m), all that

RCRA commands has been achieved. However, where

ageyrevation and dilution does not eliminate the char-

acteristic or (more likely) does not minimize the tox-

39a

icity of the constituents, then RCRA requires further

treatment.

In those instances where aggregation and dilution

result in the elimination of the characteristic, but the

toxicity of the constituents has not been minimized,

the required further treatment of the constituents

may occur after the waste leaves the CWA tank and

enters the surface impoundment.‘ Although a sur-

face impoundment is technically a form of “land dis-

posal,” and treatment therein normally would be at

odds with the commands of RCRA, this approach is

nonetheless acceptable because RCRA requires some

accommodation with CWA. However, in all other

respects, treatment of solid wastes in a CWA surface

impoundment must meet RCRA requirements prior

to ultimate discharge into waters of the United States

or publicly owned treatment works (“POTWs”). If

the treatment in the CWA surface impoundment suc-

ceeds in removing the toxicity to the extent 3004.

(m)(1) would have required, then RCRA does not

require a separate treatment regimen. In other words,

what leaves a CWA treatment facility can be no more

toxic than if the waste streams were individually

treated pursuant to the RCRA treatment standards.

Applying the same principles to the deep injection

well rule, we hold that dilution is permissible prior

to injection only where dilution itself fully meets the

section 3004(m)(1) standards.

* Where aggregation and dilution does not eliminate the

characteristic, the waste is still technically “hazardous” and

cannot be placed (even temporarily) in an unlined CWA

surface impoundment.

40a

A. Clean Water Act Treatment Systems

1. Background

The Federal Water Pollution Control Act, popu-

larly known as the Clean Water Act, establishes a

comprehensive treatment regime to eliminate “the

discharge of pollutants into the navigable waters” of

the United States. CWA §301(a), 33 U.S.C.

$1251 (1988). In general, the CWA prohibits the

discharge of any pollutant into the waters of the

United States. CWA § 301(a), 33 U.S.C. § 1311(a)

(1988). “This basic rule admits of a critical excep-

tion—the discharge of pollutants is permitted if the

source obtains and complies with a permit that limits

the amounts and kinds of pollutants which can law-

fully be discharged.” NRDC v. EPA, 822 F.2d 104,

108 (D.C. Cir. 1987). Regulations for permits dre

established through the Clean Water Act effluent

guidelines and pretreatment standards and are ap-

plied through the National Pollutant Discharge Elimi-

nation System (“NPDES”); permits are issued there-

under to qualifying owners and operators of facilities

that discharge into waters of the United States or

POTWs. See CWA §§ 401, 402, 33 U.S.C. §§ 1341,

1342 (1988).

Treatment facilities operating pursuant to the CWA

CWA often receive waste streams from many sources,

and generally these streams are combined for central-

ized treatment. Following aggregation, the facilities

sometimes place the combined stream in unlined sur-

face impoundments as part of the CWA treatment

train. These impoundments do not meet RCRA sub-

title C standards and they are regulated solely under

RCRA subtitle D (solid wastes). However, as the

KPA noted in the final rule, the use of surface im-

4la

poundments for solid wastes clearly implicates the

land ban under RCRA. See 55 Fed. Reg. at 22,657.

The CWA treatment facilities at issue here do not

handle listed hazardous wastes; thus, prior to the third-

third proceeding, which classified and identified the

characteristic hazardous wastes, the use of an unlined

surface impoundment did not implicate RCRA at all.

In addition, under RCRA rules prior to the third-

third proceeding, the EPA prohibited dilution of any

hazardous waste. Thus, once a waste was determined

to be hazardous, it had to be “treated” under RCRA;

dilution was not a form of treatment, nor could it

be used to avoid RCRA’s treatment rules:

No generator, transporter, handler, or owner or

operator of a treatment, storage, or disposal fa-

cility shall in any way dilute a restricted waste

or the residual from treatment of a restricted

waste as a substitute for adequate treatment to

achieve compliance with Subpart D of this part,

to circumvent the effective date of a prohibition

in subpart C of this part, to otherwise avoid a

prohibition in subpart C of this part, or to cir-

cumvent a land disposal prohibition imposed by

RCRA section 3004.

40 C.F.R. § 268.3 (1989); see also, e.g., Land Dis-

posal Restrictions for Certain “California List’ Haz-

ardous Wastes, 52 Fed. Reg. 25,760, 25,778 (1987)

(“EPA [is] amend[ing] the § 268.3 dilution prohibi-

tion . . . to include dilution to avoid a prohibition in

Subpart C of Part 268 (e.g., a dilution to below the

restrictions levels for the California list wastes) and

dilution to circumvent the effective date of a Subpart

C prohibition on land disposal.”). The EPA specif-

ically noted, however, that it did not intend to pro-

42a

hibit “legitimate aggregation of waste streams (e.g.,

wastewaters) to facilitate centralized treatment.” Jd.

Although CWA treatment facilities handled charac-

teristic wastes before the adoption of the third-third

rule, there were no land-ban requirements under

RCRA directed at these wastes. Thus, as to these

wastes, CWA facilities faced no restrictions under

RCRA prior to the third-third rule. After promulga-

tion of the third-third rule, however, CWA facilities

handling characteristic wastes became subject to po-

tential regulation under RCRA’s subtitle C impound-

ment and land-ban requirements.

For listed wastes, there are generally no overlap-

ping CWA and RCRA treatment requirements

for wastewater ultimately discharged to a water

of the United States or POTW ... . Some of

these facilities, however, generate waste which

exnibits a hazardous characteristic but after mix-

ing with other waste streams ceases to exhibit

that characteristic prior to placement in a sub-

title D surface impoundment which is part of

the wastewater treatment train. These surface

impoundments are land disposal units for pur-

pose of LDR prohibitions. The practice of mix-

ing could thus trigger LDR dilution rules.

55 Fed. Reg. at 22,267. The EPA noted that, if these

CWA facilities were required to meet RCRA stand-

ards fully, this “would create significant regulatory

disruption,” id., because each facility would be forced

“either to (1) treat the waste prior to placement in

the surface impoundment, (2) obtain a ‘no migra-

tion[’] variance, (3) comply with section 3005

(j) (11) [setting standards for surface impoundments

which treat hazardous wastes,] or (4) install tank

43a

treatment instead of using surface impoundments,”

id. n.14.

To meet its concern over forcing CWA facilities to

meet RCRA’s subtitle C requirements, the EPA

amended section 268.3. The amendment provides that

CWA treatment facilities do not violate section 268.3

when they aggregate characteristic wastes for which

no specific treatment method has been detailed with

other waste streams and thereby dilute the wastes to

below the characteristic level.

Dilution of wastes that are hazardous only be-

cause they exhibit a characteristic in a treatment

system which treats wastes subsequently dis-

charged to a water of the United States pursuant

to a permit issued under section 402 of the Clean

Water Act (CWA) or which treats wastes for

purposes of pre-treatment requirements under

section 307 of the CWA is not impermissible

dilution for purposes of this section unless a

method has been specified as the treatment stand-

ard in § 268.42.

40 C.F.R. § 268.3(b) (1991).° The phrase “unless a

method has been specified as the treatment standard

in § 268.42” makes clear that dilution is permitted

only for those waste streams that the EPA has other-

wise permitted to be “treated” by dilution, that is,

ICR wastes, and those EP toxic metal wastes for

which the EPA has required treatment to a specific

level (as opposed to by a specific method).* Because

* The former § 268.3 was renumbered § 268.3 (a).

*See 40 C.F.R. § 268.41 (1991) (listing EP toxic metal

characteristic wastes for which a treatment level has been

specified). By contrast, a CWA facility could not aggregate

- 44a

this dilution removes the characteristic prior to place-

ment in the unlined surface impoundment, the EPA

claims that RCRA is satisfied—no land disposal of

“hazardous waste” oecurs.

NRDC petitioners challenge the amendment per-

mitting dilution before wastes are placed in CWA

surface impoundments. Because RCRA _ requires

treatment before any land disposal (unless the land

disposal facility wins a no-migration finding) and

because CWA surface impoundments are “land dis-

posal facilities,’ merely diluting the characteristic

wastes to remove the characteristic does not satisfy

the statute.

2. Analysis

We already have held that RCRA section 3004

(m)(1) requires treatment both to remove the char-

acteristic and to substantially reduce the toxicity of

all hazardous constituents present in the character-

istic waste.’ The treatment standards are the core

of RCRA’s hazardous waste management scheme, and

nothing in RCRA or the CWA permits the EPA to

establish different treatment standards when waste-

waters are treated in CWA systems instead of facili-

ties operated solely to RCRA standards. Neverthe-

less, Congress, when enacting RCRA, was cognizant

a stream that was hazardous because it was characterized as a

high total organic compound ignitable nonwastewater. See

55 Fed. Reg. at 22,657; id. at 22,544 (requiring incineration

of high total organic compound ignitable nonwastewaters).

7™“No amount of agency expertise” can change the meaning

of the statute Congress enacted here. Board of Governors,

Federal Reserve System v. Dimension Fin..Corp., 474 U.S.

361, 368 (1986).

45a

of the substantial development of CWA systems, and,

thus, permitted regulatory “accommodation” of RCRA

and CWA systems. Thus, we agree with the EPA

that, under RCRA); diluted formerly characteristic

wastes may be placed in subtitle D surface impound-

ments which are part of an integrated CWA treat-

ment train. However, in order for true “accommo-

dation” to be accomplished, we find that RCRA treat-

ment requirements cannot be ignored merely because

CWA is implicated; that is, the CWA does not over-

ride RCRA. Thus, we hold that, whenever wastes

are put in CWA surface impoundments before they

have been treated pursuant to RCRA to reduce the

toxicity of all hazardous constituents, these wastes

must be so treated before exiting the CWA treatment

facilities. In other words, CWA facilities handling

characteristic wastes must remove the characteristic

and decrease the toxicity of the waste’s hazardous

constituents to the same degree that treatment out-

side a CWA system would.

NRDC petitioners and the EPA disagree primarily

because they each view differently the waste stream

after it has been aggregated but before it has been

placed in the CWA surface impoundment. The EPA

Suggests that, because the formerly characteristic

wastes no longer exhibit the characteristic which

classifies the waste as “hazardous,” no impermissible

land disposal of hazardous wastes occurs. By con-

trast, NRDC petitioners see that hazardous wastes

are handled in a way that does not meet the require-

ments of section 3004(m)(1) and are then land dis-

posed. When a waste which is hazardous because of

some constituent, for example a metals-bearing waste-

water, is diluted, the concentration of the metals is

decreased, but dilution does not prevent any of the

metals from entering the environment.

46a

We begin with the definition of section 3004 (m)

(1), which the EPA has conceded means elimination

of the hazardous characteristic and reduction of all

the hazardous constituents. The EPA cannot color-

ably claim that RCRA permits lesser treatment in

this part of the case than in the first part of this

case. It is also conceded that the individual waste

streams sent to the CWA treatment facility are,

before aggregation, hazardous wastes. Therefore,

the wastes must be treated pursuant to the 3004

(m)(1) standards. The EPA’s joinder, that because

the wastes being placed in the surface impoundment

are no longer “hazardous” they need not be treated,

is exactly the argument industry petitioners previ-

ously made and the EPA rejected. RCRA attaches to

“hazardous wastes” that are destined for land dis-

posal facilities and the statute requires complete

treatment. The EPA cannot take a_ position here

radically at odds with its prior position. RCRA re-

quires treatment that removes the characteristic and

substantially reduces the toxicity of all hazardous

constituents.

Nevertheless, the EPA is correct that Congress,

when enacting RCRA, recognized that prior environ-

mental statutes, such as the Clean Water Act, would

need to be accommodated.

The Administrator shall integrate all provisions

_of this chapter for purposes of administration

and enforcement and shall avoid duplication, to

the maximum extent practicable, with the appro-

priate provisions of the .. . Federal Water Pol-

lution Control Act [and] the Safe Drinking

Water Act ..., and such other Acts of Congress

as grant regulatory authority to the Adminis-

trator. Such integration shall be effected only

A ial

47a

to the extent that it can be done in a manner

consistent with the goals and policies expressed

in this chapter and in the other acts referred to

in this subsection.

RCRA § 1006(b) (1), 42 U.S.C. § 6905 (b) (1) (1988) ;

see 55 Fed. Reg. at 22,654, 22,657. The EPA’s de-

cision to permit “decharacterized” hazardous wastes

to be deposited in surface impoundments as part of

continuing treatment is a reasonable accommodation.

We wish to make explicit the impact of our hold-

ing because we find merit in significant parts of both

parties’ positions. First, where dilution to remove

the characteristic meets the definition of treatment

under section 3004(m) (1), nothing more is required.

Second, where dilution removes the characteristic but

does not “treat” the waste by reducing the toxicity

of hazardous constituents, then the decharacterized

waste may he placed in a surface impoundment /f

and only if the resulting CWA treatment fully com-

plies with RCRA § 3004(m)(1). In other words,

the material that comes out of CWA treatment fa-

cilities that employ surface impoundments must re-

move the hazardous constitutents to the same extent

that any other treatment facility that complies with

RCRA does.”

8 To illustrate RCRA’s focus on treatment of the hazardous

constituents in a waste, consider a waste stream hazardous

by characteristic for cadmium. Both the characteristic and

treatment levels for the hazardous waste are 1.0 mg l. As-

sume that a stream of 3.0 mg/1 daily deposits 1000 liters into

a treatment facility. A RCRA treatment facility would re-

move at least 2000 mg of cadmium from the waste stream.

A CWA treatment facility must do the same—although to do

so it will have to process at least three times as much water

(because dilution of 1000 liters of 3.0 mg1 to just below the

48a

This result satisfies RCRA’s requirement that any

accommodation “be done in a manner consistent with

the goals and policies” of both RCRA and CWA,

RCRA § 1006(b) (1); the EPA’s approach does not.’

First, under this approach, treatment is accomplished

in conformance with section 3004(m)(1). While

section 1006(b)(1) requires some accommodation

with existing treatment regimes, that section by its

terms does not permit the substantive standards of

RCRA to be compromised. The treatment standards

are the heart of RCRA’s hazardous waste manage-

ment program. Section 3004(@2), 42 U.S.C. § 6924

(@), permits land disposal only after treatment or

in a facility which meets the strong no-migration

standard. The Conference Report stressed that

“through the vigorous implementation of the objec-

tives of this Act, .. . advanced treatment, recycling,

incineration and other hazardous waste control tech-

nologies should replace land disposal.” H.R. Conf.

Rep. No. 1133, 98th Cong., 2d Sess. 80 (1984): see

also 130 Cong. Ree. 29,529 (1984) (“The regulatory

characteristic level will yield just over 3000 liters). Allowing

dilution alone would decharacterize the waste, but it would

not reduce the total amount of cadmium entering the environ-

ment. One thousand liters of 3.0 mg/l cadmium yields the

same amount of hazardous constituent as 3000 liters of 1.0

mg/1 cadmium.

* “The traditional deference courts pay to agency interpre-

tation is not to be aplied to alter the clearly expressed intent

of Congress.” Board of Governors, 474 U.S. at 368; see also

K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 293-94 (1988).

Section 1006(b) (1) requires that any “accommodation” re-

main true to the goals of all of the relevant environmental

statutes; RCRA’s treatment standards, not the lowest com-

mon denominator, must survive any attempt to integrate the

statutes.

49a

program mandated by this bill, if conscientiously im-

plemented, will force a massive change in this coun-

try’s disposal practices: That is, away from land

disposal and toward appropriate recycling, waste re-

duction and treatment.”’). Second, nothing in RCRA

demands, as NRDC petitioners would suggest, that

treatment occur prior to aggregation or dilution or

that dilution not be a step in the treatment process.

Third, the diluted streams deposited in the surface

impoundment are not “hazardous” when placed there,

and they are not held there permanently.

In this last regard, this case differs from API,

906 F.2d 729. In that case, which considered aspects

of the first-third rule, several industry representa-

tives challenged the EPA’s decision not to consider

land treatment as a form of treatment for hazardous

wastes under section 3004(m) (1). The court affirmed

the EPA’s action, ruling that land treatment was

a form of land disposal and that “RCRA clearly spe-

cifies . . . that hazardous wastes must be treated

before being land disposed.” Jd. at 735. The API

court also noted that “[p]ursuant to 42 U.S.C.

§ 6925(j) (11), Congress allowed surface impound-

ments (a type of land disposal unit under § 6924

(k)) to receive, on an interim basis, hazardous

wastes that have not been treated to meet § 6924(m)

standards” only so long as the impoundments met

certain minimum technological standards. Jd. at 736;

see RCRA § 3004(0) (1), 42 U.S.C. § 6924(0) (1)

(1988) (requiring double-lining, leachate collection

and groundwater monitoring). Here, however, the

liquids, at the time they are placed in the sur-

face impoundments, are not technically “hazardous

wastes,” although they are fully subject to RCRA’s

strictures because they were hazardous and have

50a

not yet met the treatment requirements. Addition-

ally, the liquids here are only placed in the surface

impoundments temporarily; in API, the “land treat-

ment” represented the final resting place of the haz-

ardous wastes.

In sum, section 3004(m) (1)’s treatment standards

lie at the core of RCRA subtitle C and require that

any hazardous waste be treated in such a way that

hazardous constituents are removed from the waste

before it enters the environment. Nonetheless, RCRA

section 1006(b)(1) contemplates some accommoda-

tion with existing CWA systems; to strictiy apply

each RCRA prohibition would nullify section 1006

(b) (1) and, we think, would be untrue to Congress’s

intent. Thus, allowing temporary deposit of de-

characterized wastes is a reasonable accommodation

so long as complete circumvention of the treatment

standards does not occur. Finally, we emphasize that

the result here is unique to CWA systems. Nothing

herein permits the placement (temporarily or other-

wise) of hazardous wastes or formerly hazardous

wastes which have not yet met section 3004(m) (1)

treatment standards into non-subtitle C surface im-

poundments except in existing CWA treatment sys-

tems which ultimately treat the streams to full sec-

tion 3004(m) (1) standards.”°

10 Furthermore, as the EPA concedes in its brief, if the

stream entering the surface impoundment is not decharac-

terized, then RCRA requires the impoundment to meet the

subtitle C requirements. Similarly, any hazardous precipitate

or other hazardous material generated during CWA treat-

ment must be managed in accord with subtitle C.

5la

B. Deep Injection Wells Regulated Under the Safe

- Drinking Water Act

1. Generally

In the final third-third rule, the EPA promulgated

a dilution rule for deep injection well facilities simi-

lar to the CWA treatment facilities rule just con-

sidered. Under new 40 C.F.R. § 148.1(d) (1991),

operators of deep injection wells’ are permitted to

dilute characteristic wastes to remove the character-

istic prior to injecting those wastes. Unlike the

CWA dilution permission, operators of deep injection

wells may dilute all characteristic hazardous wastes,

including those for which a specific treatment method

is required (for example, high total organic com-

pound ignitable wastes, which otherwise must be

incinerated or utilized as fuel substitute). Cf. 40

C.F.R. § 268.3(b) (waste may not be diluted in a

CWA system if ‘a method has been specified as the

treatment standard in § 268.42”). NRDC petition-

ers again charge that the rule violates RCRA because

hazardous wastes are land disposed before being

treated to section 3004(m)(1) standards; the EPA

argues that the rule meets RCRA because no “haz-

ardous” wastes are injected and that the rule is a

necessary accommodation with the SDWA, which

governs deep well injection generally. Consistent

with our resolution of the Clean Water Act systems

issue, we hold that dilution followed by injection into

a deep well is permissible only where dilution itself

fully meets section 3004(m)(1) standards or where

11 The deep injection wells at issue here, Class I deep wells,

inject wastewaters into geologic formations below the lowest

formation containing a source of drinking water. See 40

C.F.R. 144.6(a) (1991).

52a

the waste will subsequently meet section 3004(m) (1)

standards. Because deep well injection is permanent

land disposal, our holding in effect permits diluted

decharacterized wastes to be deep well injected only

when dilution meets the section 3004(m)(1) stand-

ard or where the deep well secures a no-migration

variance.

Before the third-third rule, many deep injection

wells handled characteristic wastes without being

subject to subtitle C requirements. Therefore, the

EPA promulgated section 148.1(d) for reasons simi-

lar to those it offered to support section 268.3(b).

In general, the EPA claimed that the rule was re-

quired to protect existing SDWA systems. ‘The large

facilities that have these wells often mix waste

streams and through this mixing remove the char-

acteristic prior to disposal. A dilution prohibition

would require restructuring of these facilities.” 55

Fed. Reg. at 22,658.

The EPA also argued that treatment to RCRA

standards would provide no environmental benefit

over dilution and injection. The “EPA believes that

the application of dilution rules to these wastes would

not further minimize threats to human health and

the environment. Specifically, EPA believes that dis-

posal of these metals by underground injection at the

characteristic level is as sound as the treatment

option.” Jd.; see also id. (quoting floor statement of

Senator Bentsen commenting on safety of under-

ground injection). The EPA additionally concluded

that all injection wells would meet the no-migration

requirement, and the Agency therefore held that it

would not require individual no-migration showings.

Id.

53a

We reject each of the EPA’s proffered justifica-

tions. Unlike the CWA system context, where the

hazardous wastes can be eventually treated to RCRA

standards, injected wastes are not treated further.

Section 1006(b) (1) cannot be used to wholly circum-

vent RCRA. To permit deep well injection operators

to dilute all characteristic wastes to below the chay-

acteristic level and then to inject them would com-

pletely avoid the balance Congress struck in RCRA.

Specifically, Congress required that any land dis-

posal of hazardous waste be preceded by treatment

to section 3004(m) (1) standards or by a site-specific

no-migration finding. Although we have found the

temporary placement of decharacterized wastes in

CWA surface impoundments, which admittedly are

land disposal facilities, to be a reasonable accommo-

dation with the CWA, that holding turns on the

prospect for future treatment so that the core of

RCRA is not voided. Here, no treatment follows

decharacterization.

Additionally, this court previously has rejected the

argument that SDWA standards meet RCRA re-

quirements. In NRDC v. EPA, 907 F.2d 1146 (D.C.

Cir. 1990) (per curiam), the industry petitioners

claimed that the EPA’s deep injection well standards

there at issue were too stringent and argued that the

SDWA provided sufficient protection. The court

found against the industry petitioners by referring

to the differing purposes of the two statutes.

The texts of RCRA and SDWA provide no sup-

port for the [Chemical Manufacturing Associa-

tion]’s identity argument. SDWA protects

sources of drinking water; RCRA protects hu-

man health and the environment. SDWA states

that underground injection must not endanger

54a

drinking water sources; RCRA states that there

must be no migration of hazardous constituents

from the injection zone for as long as the wastes

remain hazardous; it makes no reference to any-

thing outside the injection zone that might be

threatened by such a migration. The statutory

texts provide no evidence whatsoever that Con-

gress intended that the RCRA and SDWA stand-

ards be identical.

Id. at 1157; see also id. (specifically rejecting reli-

ance on Senator Bentsen’s floor statements). Nothing

the EPA has pointed to in the record suggests that

deep injection wells will contain the diluted wastes

(such as diluted metal-bearing streams). The EPA

refers to its Background Document, but its state-

ment there refers to no studies or other hard evi-

dence the Agency has accumulated.

EPA believes that deep well disposal of these

metals at concentrations below the characteristic

level may be as sound as the treatment option.

Native formation fluid injection zones already

contain substantial concentrations of these met-

als. The addition of more metal-bearing fluid

below characteristic levels would not change this

general feature of the subsurface environment.

Moreover, the propensity of such metals to ad-

here to and thereby generally stay contained in

the injection zones make the practice of deep well

disposal of such constituents an environmentally

sound one.

Background Document, supra, at 269, reprinted in

J.A. at 405.

The EPA’s second argument, that modification of

deep injection well systems to require either pre-

treatment of characteristic wastes or issuance of

55a

case-by-case no-migration permits would be too bur-

densome, is simply irrelevant. Deep well injection is

a form of land disposal. The statute provides no

exemption .for systems which must be retrofitted,

other than a national capacity variance. See RCRA

§ 3004 (h), 42 U.S.C. § 6924 (h) (1988) (the EPA may

suspend regulations for up to two years where in-

adequate treatment capacity exists).

Finally, Congress decided that no-migration show-

ings were the only alternative to treatment under

section 3004(m)(1). See RCRA §3004(g), 42

U.S.C. § 6924(g). The EPA’s claim that its experi-

ence showed, in general, that deep injection wells

would win no-migration variances is not relevant un-

der Congress’s requirement that each site be certi-

fied, see RCRA § 3004(g), 42 U.S.C. § 6924(g), and

is belied by the EPA’s record evidence, see United

States Environmental Protection Agency, State-of-

the-Art Report, Injection of Hazardous Wastes into

Deep Wells (1986) (‘This survey also indicates that

additional research is needed in all areas of abiotic

and biotic waste interactions before definitive ex-

planations can be given on their long-term fate.”),

reprinted in J.A. at 248.

2. The Treatment Standard for Lead Waste-

waters

In another example of its decision to “accommo-

date” treatment regimes based on the SDWA, the

EPA set the treatment standard for lead wastewaters

at the characteristic level of 5.0 milligrams per titer

(mg/l) lead. In accord with our decisions that ac-

commodation cannot moot the 3001(m) (1) treatment

standard, we hold that the 5.0 mg’/] standard violates

RCRA, and we remand that part of the rule to the

Agency for further consideration.

56a

In the proposed rule, the EPA suggested a treat-

ment standard of 0.04 mg/] for D008 lead waste-

waters. See 55 Fed. Reg. at 22,567. Many com-

menters submitted data challenging that level as too

low, but all of the data did suggest that optimal

treatment could achieve a level at least an order of

magnitude lower than the 5.0 mg/1 characteristic

level. See id. (reviewing data submissions). In the

final rule, the EPA conceded that, while its proposed

treatment level could not be achieved, a treatment

level below the characteristic level was possible.

“Based on the evaluation of all of the wastewaters

data received from comments, as well as the various

Clean Water Act, effluent limitation guidelines and

pretreatment standards regulating lead .. ., the

Agency concludes that well designed and well oper-

ated treatment systems can achieve total concentra-

tions of lead lower than the characteristic level.” Jd.

The EPA’s only reason for rejecting a treatment

standard below the characteristic level was a refer-

ence to its decision, considered previously, that the

Agency could integrate RCRA with other regulatory

programs.

As explained in Section III.D, however, EPA has

determined not to require hazardous wastewaters

to be treated to levels less than the characteristic

level in order to avoid significant and potentially

environmentally counterproductive disruptions to

the NPDES pretreatment and UIC [deep in-

jection well] programs.

Id. (referring to 55 Fed. Reg. at 22,651).

The keys to this argument largely have been ex-

aimed previously. The treatment standards embodied

in section 3004(m)(1) are the heart of RCRA; sec-

tion 1006(b) (1) does not permit concern for existing

57a

treatment regimes to override RCRA’s substantive

requirements.

The EPA’s approach on the record is also some-

what flawed. Its reference to the discussion of point

of disposal versus point of generation seems to sug-

gest that the EPA will not consider the waste hazard-

ous if it has been diluted to below the characteristic

level in a CWA treatment facility. But, the EPA did

not follow this approach in the final rule; instead, it

stated that “the Agency is promulgating the treat-

ment standard at the characteristic level, thereby

treaters and generators of D008 wastewaters may

select any precipitant in order to meet the charac-

teristic level.” Jd. Therefore, the EPA has set a

treatment level and, by contrast, fas not exempted

lead wastewaters from subtitle C regulation until

such time as they might be land disposed (i.e., a point

of disposal approach). Because the EPA has conceded

that treatment to 0.4 mg/1] is possible, its 5.0 mg/1

standard violates section 3004(m) (1)’s requirement

that the EPA select levels or methods of treatment

“so that short-term and long-term threats to human

health and the environment are minimized.” RCRA

§ 3004(m) (1), 42 U.S.C. § 6924(m) (1) (emphasis

added).

C. The Fertilizer Institute’s Challenges to the Dilu-

tion Rules

The Fertilizer Institute challenges two aspects of

the third-third rule that clarify the scope of the

dilution prohibition of Rule 268.3(a)." The EPA

stated in the final rule that impermissible dilution

occurred whenever waste streams are combined and

the combined stream is not treated in a manner

12 Petitioner does not challenge Rule 268.3(b), discussed

earlier, which permits certain dilution.

58a

appropriate for each individual waste.” Petitioner

claims that the EPA’s statements constitute “rules” ™

that were issued without notice and opportunity to

comment and are impermissibly vague. Additionally,

petitioner asserts that Rule 268.3(b) arbitrarily ex-

cludes from its scope listed wastes with concentration-

based treatment standards.

The Fertilizer Institute is concerned primarily with

the operation of central treatment facilities designed

pursuant to the CWA. These facilities, as discussed

above, often accumulate waste streams for central-

ized treatment. The EPA’s statements clarify that

the CWA treatment facility must utilize treatment

appropriate for al! of the incoming waste streams.

The prohibitory part of Rule 268.3 states that dilu-

tion “as a substitute for adequate treatment .. ., to

circumvent the effective date of a prohibition . . .,

to otherwise avoid a prohibition, . . . or to circum-

vent a land disposal prohibition” is impermissible.

40 C.F.R. § 268.3(a). In the final rule, the EPA

stated that the section meant that, “[a]s a general

rule, if the wastes are all legitimately amenable to

the same type of treatment, and this method of treat-

ment is utilized for the aggregated wastes, the aggre-

gation step does not constitute impermissible dilu-

tion.” 55 Fed. Reg. at 22,532 (emphasis added).

The EPA also offered several examples of the opera-

tion of this rule. Petitioner focuses on the third

example, in which the EPA stated that impe

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