Opposition Brief — Chemical Manufacturers Ass'n v. Environmental Protection Agency

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No. 92-1150 :

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

CHEMICAL MANUFACTURERS ASSOCIATION and

AMERICAN PETROLEUM INSTITUTE,

-. Petitioners,

UNITED STATES ENVIRON MENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION OF THE

HAZARDOUS WASTE TREATMENT COUNCIL,

NATURAL RESOURCES DEFENSE COUNCIL,

ENVIRONMENTAL DEFENSE FUND,

AND SIERRA CLUB

DAVID R. CASE

Counsel of Record

915 15th Street, N.W.

Fifth Floor

Washington, D.C. 200V5

(202) 783-0870

Attorney for

Hazardous Waste Treatment

Council, Natural Resources

Defense Council,

Environmental Defense Fund,

April 7, 1993 and Sierra Club

Witsowm - Eres PRINTING Co.. INC 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the court of appeals adhered to the

well-settled principles of Chevron, U.S.A., Inc. v. Nat-

ural Resources Defense Council, Inc. (“Chevron Step

I’) in holding that section 3004(m)(1) of the Re-

source Conservation and Recovery Act (‘“RCRA’’)

requires that the toxic contaminants in hazardous

wastes be treated to minimize threats, not merely

diluted.

2. Whether the court of appeals employed the

proper Chevron Step I analysis in holding that section

1006 of RCRA on its face directs EPA to integrate

RCRA with other environmental statutes in a manner

that does not override the express statutory require-

ments of RCRA.

(i)

TABLE OF CONTENTS

Page

GUESLIONS PRESENTED ............................................ i

cy © 5) AES Gye LO) 2 yy 0}. SRR Vv

ee OO OE BD | .............--nnnnaciecccnccccensencncacees 1

BLALEmeN Et OF THE CASE ....................................-.... 2

The RCRA Land Disposal Prohibitions —............... 2

ane EniraG-imira Rule ............................... Liga ARCA 3

ee 5

SUMMARY OF ARGUMENT ............................. . 5

ARGUMENT Eye, . 6

I. THE COURT OF APPEALS DETERMINED

THAT EPA’S INCONSISTENT CONSTRUC-

TION OF SECTION 3004(m) (1) DID NOT

ACCORD WITH CONGRESS’ CLEAR IN-

TENT nas 6

A. The Court Relied On The Plain Meaning of

II A TED CD onc canennancnnnsseversccsrenensacase 6

B. The Court Applied The Same Construction

of Section 3004(m)(1) To Characteristic

Wastes Managed in CWA Lagoons and

SDWA Injection Wells ..............0.0....000000000022.. 9

C. The Court Could Not Defer To EPA’s Self-

Contradictory Rationale 10

II. THE COURT’S CONSTRUCTION OF SEC-

TION 1006 COMPORTS WITH THE CLEAR

INTENT OF CONGRESS 11

A. The Court Held That Section 1006 On Its

Face Forbids EPA From Overriding The

Express Requirements Of RCRA 11

(ili)

TABLE OF CONTENTS—Continued

Page

B. The Costs Of Compliance To Industry Do

Not Provide A Basis For Certiorari ........... 14

et eR | ti eee Se ny ane Oe Sees COE ee mM 15

TABLE OF AUTHORITIES

Cases: Page

American Petroleum Institute v. EPA, 906 F.2d

729 (D.C. Cir. 1990) .............. Seaton eae eet 3

Board of Governors, Federal Reserve System v.

Dimension Finance Corp., 474 U.S. 361 (1986) . 9

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

fense Council, Inc., 467 U.S. 837 (1984) 6

Hazardous Waste Treatment Council v. EPA, 886

F.2d 355 (D.C. Cir. 1989), cert. denied, 111

S.Ct. 139 (1990) . be nee TL Dea 3,7

Hazardous Waste Treatment Council v. Thomas,

885 F.2d 918 (D.C. Cir. 1989) 3

ICC v. Appleyard, 513 F.2d 575 (4th Cir.), cert.

denied, 423 U.S. 840 (1975) 14

Natural Resources Defense Council v. EPA, 907

F.2d 1146 (D.C. Cir. 1990)

Statutes and Regulations:

Clean Water Act, 33 U.S.C. $§ 1251-1387 ere 5

Safe Drinking Water Act, 42 U.S.C. $§ 300f-300j.. 5

Resource Conservation and Recovery Act, 42

U.S.C. §§ 6901 et seq. .......000000000000.. 2

42 U.S.C. § 6901 (b) (5)-(7) |. : - 7

42 U.S.C. § 6902 (a) (6) _... east 7

42 U.S.C. $ 6905 (b) (1) . 11

42 U.S.C. $ 6921 (b) (1) 4

BE UAL. FORO) anno no ooscccoencccccacees . 3,14

42 U.S.C. § 6924 (g) (5) ...... . 3

42 U.S.C. § 6924 (h) (2) .. 14

42 U.S.C. § 6924 (h) (3) _...... 14

42 U.S.C. § 6924 (k) ................... ae 4

42 U.S.C. § 6924(m) (1) ....-.0o... vesseseeeeeeee-DASSiM

Hazardous and Solid Waste Amendments of 1984,

Pub. L. No. 98-616, 98 Stat. 3221 3

40 C.F.R. § 260.10 (1992) . co . ae 4

40 C.F.R. § 261.10-.24 <a . te - 4

55 Fed. Reg. 22,651 (1990)... 8

55 Fed. Reg. 22,665 ae aes 8

58 Fed. Reg. 4972 (1993) ......... svavsiehasetconcl maaaanancee Me 14

IN THE

Supreme Cart of the United States

OCTOBER TERM, 1992

No. 92-1150

CHEMICAL MANUFACTURERS ASSOCIATION and

AMERICAN PETROLEUM INSTITUTE,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION OF THE

HAZARDOUS WASTE TREATMENT COUNCIL,

NATURAL RESOURCES DEFENSE COUNCIL,

ENVIRONMENTAL DEFENSE FUND,

AND SIERRA CLUB

INTEREST OF PARTIES

Petitioners in the court of appeals were the Haz-

ardous Waste Treatment Council, Natural Resources

Defense Council, Environmental Defense Fund, and

Sierra Club. The respondent below was the U.S. En-

vironmental Protection Agency. The Chemical Manu-

facturers Association and the American Petroleum

Institute were intervenors in the HWTC petitioners’

Case,

The Hazardous Wasie Treatment Council

(*“HWTC”’) is a national not-for-profit trade associa-

tion having more than 60 member firms with opera-

tions in forty-eight states. HWTC member companies

utilize established and emerging technologies for the

treatment, recycling, and disposal of hazardous

wastes, including thermal destruction, biological and

chemical treatment, land disposal after pretreatment,

and hazardous site cleanups.

The Natural Resources Defense Council (‘““NRDC’’)

is a national, non-profit environmental organization

with over 107,000 members. NRDC seeks to ensure

protection of human health and the natural environ-

ment.

The Environmental Defense Fund (“EDF’’) is a

non-profit membership corporation with over 150,000

members dedicated to the protection of human health

and the environment by eliminating unnecessary ex-

posures to toxic chemicals.

The Sierra Club is a national conservation organi-

zation, founded in 1892, with more than 405,000

members which has participated actively in develop-

ing and enforcing various environmental statutes and

regulations for the benefit of its members and the

public.

STATEMENT OF THE CASE

The RCRA Land Disposal Prohibitions

In the proceeding below, the D.C. Circuit was once

again called upon to construe the statutory provisions

of the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. $$ 6901 et seg., which prohibit

the land disposal of hazardous wastes. In 1984, Con-

gress amended RCRA to prohibit the land disposal

“y

of all hazardous wastes. Hazardous and Solid Waste

Amendments of 1984, Pub. L. No. 98-616, 98 Stat.

3221. Pursuant to that Jaw, EPA may allow a

hazardous waste to be land disposed under only two

conditions: (1) if the waste is first pretreated to

the section 3004(m) (1) standard which requires sig-

nificant reduction of the toxicity and mobility of

hazardous constituents in the waste so as to mini-

mize short-term and long-term threats, 42 U.S.C.

§$ 6924(m)(1); or (2) if the land disposal facility

obtains a no-migration variance by demonstrating

that there will be no migration of hazardous contami-

nants in the untreated waste from the disposal unit

for as long as the waste remains hazardous, 42 U.S.C.

$ 6924(¢) (5).

Congress directed EPA to implement the land dis-

posal prohibitions on a phased statutory schedule.

42 U.S.C. § 6924(¢). EPA first addressed certain

designated hazardous wastes, and then issued regula-

tions for all remaining hazardous wastes one third

at a time. The D.C. Circuit has reviewed each of

EPA’s major rulemakings pursuant to these statu-

tory commands. Hazardous Waste Treatment Coun-

cil v. EPA, 886 F.2d 355 (D.C. Cir. 1989), cert.

denied, 111 S.Ct. 139 (1990) (Framework Rule):

Hazardous Waste Treatment Council v. Thomas, 8&5

F.2d 918 (D.C. Cir. 1989) (California List Rule):

American Petroleum Institute v. EPA, 966 F.2d 729

(D.C. Cir. 1990) (First-Third Rule): Natural Re-

sources Defense Council v. EPA, 907 F.2d 1146 (D.C.

Cir. 1999) (Deep Well Injection Rule).

The Third-Third Rule

This case involves EPA’s regulation establishing

the land disposal prohibitions and treatment require-

ments for the third-third scheduled hazardous wastes.

EPA’s regulation deels primarily with wastes that

ure hazardous because they exhibit a characteristic

property: ignitability, corrosivity, reactivity, or tox-

icity. See 42 U.S.C. $6921(b)(1); 40 C.F.R.

§ 261.10-.24 (1992). Of significance, these charac-

teristic wastes usually contain hazardous constituents

at levels that pose a threat to human health and the

environment when land disposed. App. 3la-33a. For

example, ignitable wastes exhibit that characteristic

precisely because they contain volatile organic con-

taminants that contribute the property of ignitability.

Id. Corrosive wastes often contain toxic metal con-

taminants because the wastes corrode metal parts and

equipment. /d.

Chemical plants, petroleum refineries, and other in-

dustrial facilities generate these characteristic wastes.

Often the wastes are aggregated at the industrial

facility with large volumes of other wastewater

streams for centralized storage, treatment, and dis-

posal. App. 40a. By virtue of this aggregation, the

characteristic wastes are diluted such that the haz-

ardous characteristic is removed. The aggregated

wastes are then managed in various types of units,

including tank systems, surface impoundments, and

injection wells.’ The placement of hazardous waste

in a surface impoundment or injection well con-

stitutes land disposal under RCRA. 42 U.S.C.

§ 6924(k). Hazardous wastes that are destined for

1A surface impoundment is an excavated or diked lagoon

made primarily of earthen materials designed to hold an

accumulation of liquid wastes. 40 C.F.R. § 260.10. The lagoon

may be many acres in size, and generally does not have a

synthetic or clay liner under the waste. An injection well is

a bored or drilled well that is used for emplacement of liquid

wastes into a subsurface strata of the earth. /d.

land disposal are subject to the section 3004(m) (1)

treatment requirements. 42 U.S.C. § 6924(m) (1).

As a relevant concern, the discharge of wastewater

from these industrial lagoons is also subject to limi-

tations and permit standards under the Clean Water

Act (“CWA”). 33 U.S.C. $$ 1251-1387. The dis-

posal of wastes in underground injection wells is

subject to permit standards under the Safe Drinking

Water Act (“SDWA”). 42 U.S.C. $$ 300f-300).

The D.C. Circuit Decision

In the proceeding below, HWTC petitioners sought

review by the D.C. Circuit of an egregiously flawed

aspect of EPA’s regulation. Contrary to the proposed

rule, EPA decided to allow mere dilution of charac-

teristic hazardous wastes, in lieu of effective treat-

ment. Specifically, EPA adopted a_ standard of

“DEACTIVATION” for characteristic wastes which

would have allowed the hazardous characteristic to

be removed by dilution, without removal or destruc-

tion of any toxic contaminants in the waste. App.

19a. In addition, EPA adopted an exception to the

general prohibition on dilution for characteristic

wastes that are aggregated for management in CWA

lagoons and SDWA injection wells. App. 48a.

HWTC petitioners argued that EPA’s dilution

provisions violated RCRA section 3004(m) (1). The

court of appeals granted in part our petition for

review.

SUMMARY OF ARGUMENT

Rather than an “unwarranted expansion” of judi-

cial review, the court of appeals relied on accepted

tools of statutory construction to hold that EPA’s

regulation did not accord with Congress’ commands.

The plain language of RCRA section 8004(m) (1)

directs EPA to promulgate treatment standards that

will result in the significant reduction of toxicity and

mobility of the hazardous constituents in the waste.

EPA itself acknowledged that dilution of characteris-

tic wastes does nothing to remove or destroy the toxic

contaminants in the wastes. The court of appeals

reversed EPA’s erroneous position and upheld Con-

gress’ clear intent in RCRA. The court adhered to

accepted Chevron Step I precedents, and the opinion

below does not raise any issues warranting a writ

of certiorari.

ARGUMENT

I. THE COURT OF APPEALS DETERMINED THAT

EPA’S INCONSISTENT CONSTRUCTION OF SEC-

TION 3004(m)(1) DID- NOT ACCORD WITH CON-

GRESS’ CLEAR INTENT

The court of appeals properly applied the princi-

ples of Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), in de-

ciding the issues raised here. The court expressly

recognized that ‘“[u]nder Chevron, unless Congress

has spoken directly to the [petitioners’ claims], the

EPA’s determinations are entitled to deference, if

reasonable.” App. 2la. The court then found that

the crux of HWTC petitioners’ challenge to EPA’s

treatment standard was directly resolved by the rele-

vant statutory provision.

A. The Court Relied On The Plain Meaning of Section

3004(m) (1)

Section 3004(m)(1) of RCRA directs EPA to

promulgate treatment requirements for hazardous

wastes prior to land disposal. The treatment stand-

ards must “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.” 42 U.S.C.

§ 6924(m) (1). As the court of appeals recognized,

this is an “exacting standard.” App. 28a. To “mini-

mize threats” means to “reduce [threats] to the

smallest possible amount, extent, or degree.” Haz-

ardous Waste Treatment Council v. EPA, 886 F.2d

at 361.

HWTC petitioners argued before the court of ap-

peals that EPA’s regulations did not comply with

this statutory standard. EPA allowed hazardous

wastes to be diluted with water, solid wastes, or

other materials, as a substitute for actual treatment

of the toxic constituents in the waste. HWTC peti-

tioners demonstrated on the record that dilution

eliminates only the short-term threats posed by the

waste characteristic, but does nothing to minimize

the long-term threats posed by the toxic constituents.

App. 30a. These centaminants, if merely diluted, can

escape when the hazardous waste is land disposed

and cause contamination of the surrounding’ soil,

groundwater, and surface waters. These are the very

threats that motivated Congress to enact the land

disposal restrictions of section 3004(g)-(m) in the

1984 HSWA. See 42 U.S.C. S$ 6901(b) (5)-(7),

6902 (a) (6).

The court of appeals carefully considered EPA’s

regulation in light of the statutory standard of sec-

tion 3004(m)(1). First, the court declined to hold

that dilution can never satisfy the standard. App.

°7a. The court concluded that “when read against

RCRA’s broad definition of treatment, we cannot say

Congress clearly barred dilution as an acceptable

[treatment] methodology,” citing Chevron. App.

28a. To the extent characteristic wastes do not con-

tain toxic constituents at sufficient concentrations to

pose a threat to human health and the environment,

the court of appeals he!d that the statute does not

constrain EPA from allowing dilution as an accept-

able treatment method for eliminating the hazardous

characteristic. App. 28a.

However, the court noted that EPA’s administra-

tive record showed that many characteristic wastes

do, in fact, contain toxic constituents at significant

concentrations. App. 30a-34a. EPA itself admitted

during the rulemaking that the characteristic “‘is

only one indicator of hazard and, thus, removal of

the specific characteristic is not the same as assur-

ing that the waste is safe.” App. 30a, citing 55 Fed.

Reg. at 22,651. EPA itself acknowledged that elim-

inating the hazardous characteristic by dilution “does

not fully address the potential problem of toxic con-

stituents that may be present in the wastes... .”

App. 20a and 30a, citing 55 Fed. Reg. at 22,665.

The court of appeals properly concluded that sec-

tion 3004(m) (1) of RCRA expressly requires treat-

ment of the toxic constituents in hazardous wastes to

minimize the threats posed. EPA’s failure to require

the appropriate method and extent of treatment of

these hazardous wastes was unexplained and unre-

butted in the record. The court of appeals correctly

concluded that EPA must require treatment of the

toxic constituents in these hazardous wastes “[t]o

conform with its own reading of section 3004(m)

.... App. 32a.

B. The Court Applied The Same Construction of Sec-

tion 3004(m)(1) To Characteristic Wastes Managed

in CWA Lagoons and SDWA Injection Wells

The court of appeals next turned to when hazard-

ous wastes are treated in Clean Water Act lagoons

and Safe Drinking Water Act injection wells. App.

37a. The court saw no basis in the statute, and EPA

pointed to none, that would allow dilution in lieu of

treatment of the toxic constituents when such wastes

are managed in lagoons and injection wells. App.

38a. Indeed, CWA lagoons often have no liners to

serve as a barrier between the waste and the land,

so that untreated toxic constituents can escape di-

rectly into the soil, groundwater, and surface waters.

Similarly, SDWA injection wells are a method of

placing wastes directly into a subsurface strata of

the earth, so that untreated toxic constituents can

again pose a threat of escape.

Therefore, the court of appeals concluded that haz-

ardous wastes managed in CWA lagoons and SDWA

injection wells must receive the treatment required

by RCRA section 3004(m)(1). App. 44a-47a. This

was “the meaning of the statute Congress enacted

here,” relying on Chevron Step I and citing Board of

Governors, Federal Reserve System v. Dimension

Fin. Corp., 474 U.S. 361, 368 (1986). App. 44a.

Again, the court concluded that given the “exacting

standard” of section 3004(m)(1), EPA could not

construe the statute in an inconsistent manner. The

court opined that “[t]he EPA cannot colorably claim

that RCRA permits lesser treatment in this part of

the case than in the first part of this case.” App. 46a.

C. The Court Could Not Defer To EPA’s Self-

Contradictory Rationale

EPA’s rationale for its inconsistent construction of

section 3004(m)(1) simply did not pass Chevron

Step I muster. EPA conceded that section 3004

(m)(1) applies to a hazardous waste at the point of

its generation. App. 22a. Indeed, EPA itself re-

jected industry arguments that section 3004(m) (1)

applies only to hazardous wastes at the point of land

disposal. App. 46a. The court of appeals agreed

with EPA that the industry’s erroneous reading of

the statute would effectively eviscerate section 3004

(m)(1) treatment, because a hazardous waste could

receive sham or inadequate treatment that does not

satisfy section 3004(m) (1) if the waste was not sub-

ject to that treatment standard until the actual point

of land disposal.

Yet EPA adopted the same erroneous rationale in

defending its dilution regulation for characteristic

wastes managed in CWA lagoons and SDWA injec-

tion wells. App. 46a. EPA asserted that in these

circumstances it had “discretion” to apply section

3004(m)(1) only at the point of land disposal—at

which point, of course, the characteristic wastes are

diluted. The court of appeals could not accept

“exactly the argument industry petitioners previ-

ously made and the EPA rejected.” /d. EPA could

not “take a position here radically at odds with its

prior position.” Jd. The court held that RCRA sec-

tion 3004(m)(1) applies to hazardous wastes that

are destined for land disposal and requires complete

treatment. /d. The court reached this result based

on the plain language, statutory context, and relevant

legislative history of section 3004(m) (1), consistent

with Chevron Step I principles. App. 44a-50a.

he decision of the court of appeals was correct,

and does not represent any misapplication or un-

bounded extension of this Court’s Chevron Step I

principles. The court of appeals has had substantial

experience in construing the specific statutory pro-

visions at issue in this case. The appellate court’s

opinion reflects a careful and common sense construc-

tion of section 3004(m) (1), and does not raise any

issues that warrant review by this Court.

Il. THE COURT’S CONSTRUCTION OF SECTION 1006

COMPORTS WITH THE CLEAR INTENT OF CON-

GRESS

The court of appeals also properly construed the

“integration clause” of RCRA consistent with Chev-

EPA to “integrate all provisions of [RCRA] for pur-

poses of administration and enforcement and [to]

avoid duplication, to the maximum extent practic-

able,” with other environmental laws. 42 U.S.C.

§ 6905(b) (1). Section 1006(b)(1) goes on to stipu-

late, however, that “[s]uch integration shall be ef-

fected only to the extent that it can be done in a

manner consistent with the goals and policies ex-

pressed” in RCRA and other environmental laws. /d.

A. The Court Held That Section 1006 On Its Face

Forbids EPA From Overriding The Express Re-

quirements Of RCRA

EPA relied on section 1006(b)(1) as a further

rationale for allowing hazardous wastes to be man-

aged in CWA lagoons and SDWA injection wells,

without section 3004(m)(1) treatment. EPA as-

serted that this “accommodation” was necessary to

integrate RCRA with the CWA and SDWA. App.

46a. The court of appeals held, however, that section

1006(b) (1) by its own terms does not allow EPA

to override the express requirements of RCRA. App.

48a. Therefore the court upheld those portions of

EPA’s regulation that address hazardous wastes in

a manner consistent with both RCRA and the other

environmental statutes, but reversed to the extent

EPA allowed the “exacting standard” of RCRA sec-

tion 3004(m) (1) to be overridden. App. 50a, 53a.

The court first noted that characteristic wastes are

often aggregated with large volumes of non-hazardous

wastewaters for treatment in CWA lagoon systems.

App. 44a-45a. This aggregation can result in dilu-

tion of the characteristic wastes. The “decharacter-

ized” wastes are then further treated in the CWA

lagoons in a manner that biologically degrades the

toxic contaminants in the aggregated waste stream.

Applying the plain meaning of section 1006(b) (1),

the court of appeals concluded that EPA’s decision to

allow “decharacterized” hazardous wastes to be

managed in lagoons as part of a continuing treat-

ment process was a reasonable accommodation of both

RCRA and the CWA. App. 47a. The RCRA prohibi-

tion on the land disposal of untreated hazardous

wastes is not overridden because EPA does not allow

the CWA lagoons to receive wastes that are still

“hazardous wastes.”

By the same token, the court of appeals emphasized

that the decharacterized wastes managed in CWA la-

goons must still ultimately receive the treatment re-

quired by section 3004(m)(1). In other words, the

hazardous waste may be aggregated for treatment in

the CWA lagoon ‘if and only if the resulting CWA

treatment fully complies with RCRA § 3004(m) (1).”

App. 47a. As the court of appeals correctly observed,

only this result “satisfies RCRA’s requirement that

any accommodation ‘be done in a manner consistent

with the goals and policies’ of both RCRA and CWA.”

App. 48a (emphasis in original). The court of ap-

peals applied fundamental Chevron Step I principles,

holding that “[w]hile section 1006(b)(1) requires

some accommodation with existing treatment regimes,

that section by its terms does not permit the sub-

stantive standards of RCRA to be compromised.” /d.

(emphasis added).

With respect to hazardous wastes that are “‘de-

characterized” for disposal in SDWA injection wells,

the administrative record showed that no treatment

whatsoever of toxic constituents occurs in the injec-

tion well. App. 53a. While CWA lagoons are used

for treatment, SDWA injection wells are used solely

for final disposal. The court of appeals observed,

“Tujnlike the CWA system context, where the haz-

ardous wastes can be eventually treated to RCRA

standards, injected wastes are not treated further.”

Id. As a result, allowing hazardous wastes to be

diluted and then deep well injected, without treat-

ment of the toxic constituents in the waste to section

3004(m)(1) standards, ‘‘would completely avoid the

balance Congress struck in RCRA.” Jd. Neither the

treatment requirements of section 3004(m)(1), nor

the no-migration standard of section 3004(g), would

be met. In this context, the court of appeals con-

cluded that “[s]ection 1006(b)(1) cannot be used

to wholly circumvent RCRA.” Jd. -

The court of appeals’ decision was correct, based

on a straight-forward application of Chevron Step I

principies. No reason for granting the writ of cer-

tiorari is presented.

B. The Costs Of Compliance To Industry Do Not

» Provide A Basis For Certiorari

Petitioners’ claims that the appellate decision will

wreak “multi-billion dollar, multi-year” disruption to

industry are alarmist and unfounded, and provide no

further grounds for granting the writ. EPA has

alrendy begun the development of regulatory pro-

posals that respond to the appellate decision. See 58

Fed. Reg. 4972 (1993). EPA can be expected to take

into account the cost to industry in developing the

new regulations to the extent permitted by the

statute.

In any event, Congress prohibited land disposal of

hazardous wastes and directed EPA to establish treat-

ment requirements that satisfy section 3004(m) (1).

The cost of compliance to industry cannot change

these <S#tutory mandates. Presumably Congress was

aware of the compliance costs in enacting the 1984

HSWA, and for that reason the statute phases in

the land disposal prohibitions over a six year period.

See 42 U.S.C. $ 6924(g). Congress had the means to

further address compliance burdens, and the statute

in fact provides certain variances, extensions, and waiv-

ers to lessen the burden. See 42 U.S.C. § 6924(h) (2)

(national capacity extension); $ 6924(h) (3) (case-

by-case extension) ; § 6924(g) (5) (no-migration vari-

ance). The court of appeals already considered in-

dustry’s argument that compliance will be burden-

some, and correctly concluded that this argument is

“irrelevant” in light of the plain statutory commands.

App. 55a. See also ICC v. Appleyard, 513 F.2d 575,

577 (4th Cir.) (federal courts cannot review agency

action based on thei views of reascnable economic

policy), cert. denied, 423 U.S. 840 (1975).

Accordingly, the industry petitioners’ arguments

regarding the burden of compliance cannot justify a

writ of certiorari.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

DAVID R. CASE °