# Petition for Writ of Certiorari — Chemical Manufacturers Ass'n v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1927%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 1057 ## Text 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 v. 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. ii 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) 23 iv 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 a Page 29 la 79a 80a 8la 82a 92a Vv 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 v1 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- 2 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 3 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. OE 4 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 5 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- ’ 6 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). 7 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- 8 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. 9 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- 10 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. 11 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. 12 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 13 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 |. 14 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 15 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 16 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 17 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 £ _————————————— 18 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 19 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.” ee 20 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. 21 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). 22 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). 23 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 24 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 25 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.” 26 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 27 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. 28 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 29 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 la 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 V. 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 2a 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- 3a 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. 4a 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 5a 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. 6a 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. Ta 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. 8a TABLE OF CONTENTS TN occas ibs viet nels nliceiieseccionts aeaies halimetallabbiabiatecapeass INS I coos. ca. ccs hcastacentcensn dosashoasiiseteueiamaasen Pies eee .................. sakkccnideenarccsneienenaesnince SOW > Industry Petitioners’ Challenge to the Treat- I SI ace NRDC Petitioners’ Challenge to Deactivation ey, |, nee enc eee Ba II oa acentaccccsscaeeateasanaeuccauenss 2. Corrosive Wastes ..... Bee Cae ee i SD WEE oe fy Bog y BE Fi, oe tt | A. Clean Water Act Treatment Systems ............ ia III coca nesaese cineca dis ca nang ean ie SIE Pietrtiecticnetanic ee oes 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 m 9a 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- EE 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 ot [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1927%3A1. Public record. Not legal advice.