generators, transporters, & disposal sites EPA broad authority "as may be required to protect human health and environment"

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1 PRLS 670 ENVIRONMENTAL LAW Webpage: classweb.gmu.edu/jkozlows/670.htm Farber, Freeman and Carlson's Cases and Materials on Environmental Law, 8th ed. American Casebook Series West Law School 2009 DISPOSAL OF HAZARDOUS WASTES Regulating Treatment, Storage & Disposal Resource Conservation and Recovery Act RCRA RCRA Subtitle C Hazardous Waste Provisions Section 3001 RCRA EPA to promulgate criteria identifying characteristics of hazardous waste listing hazardous waste subject to RCRA regulation Section 3001 RCRA criteria & listing to take into account toxicity, persistence, & degradability in nature, potential for accumulation in tissue & other hazardous traits - corrosiveness, flammability. RCRA Subtitle C STANDARDS (3 sets) generators, transporters, & disposal sites EPA broad authority "as may be required to protect human health and environment" RCRA

2 standards for generators of hazardous wastes recordkeeping, reporting, labeling, & use of appropriate containers Section 3002(5) requires use of manifest system to ensure hazardous waste generated by the source is ultimately processed on-site, or at a facility with sec permit RCRA 3003 manifest system incorporated into standards for transporters transporters also subject to record-keeping & labeling requirements 3004 Treatment, Storage, & Disposal (TSD) facilities standards last phase of "cradle to grave" system for hazardous wastes Enforcement 3005 permit system for TSD facilties EPA broad inspection powers 3007 EPA power to issue compliance orders violators subject to civil penalties 3008 EPA civil actions against violators Criminal penalties violation of permit requirements or, falsification of documents 3008(d) State RCRA regulation modeled on Clean Water Act 3006 States may assume responsibility for hazardous waste control State laws less stringent than federal requirements are preempted 3009 '84 RCRA amendments minimize reliance on land disposal particularly landfill and surface impoundments should be the least favored method for managing hazardous wastes RCRA

3 regulation of underground storage tanks containing petroleum products and other hazardous liquids such as solvents & pesticides aim to avoid groundwater pollution "Solid" and "Hazardous" Waste defined Section 1003(27) does not include solid or dissolved materials in domestic sewage... or irrigation or industrial subject to CWA 402 or radioactive wastes American Mining Congress v. EPA 824 F.2d 1177 (D.C. Cir RCRA regs re recycled materials challenge: materials intended for reuse were not "wastes" Whether EPA exceeded its regulatory authority in seeking to bring materials not discarded or otherwise disposed of within the compass of "waste" under RCRA Meaning of "and other discarded material" as defined in RCRA 42 U.S.C. sec. 6903(27) EPA regulatory definition of "solid waste" expressly EXCLUDED "an intermediate manufacturing or mining process and is typically processed through the next step of the process within a short time 3

4 '83 EPA: RCRA legislative history - RECYCLING activities Congress intended recycled materials can be wastes, and if hazardous, hazardous wastes EPA claimed authority to regulate recycling activities as hazardous waste management Amended regulatory definition of "solid waste" excluded materials used or reused as effective substitutes for raw materials in processes using raw materials as principal feedstocks EPA: distinguish between discarding & ultimate recycling - "discarded" vs continuous or ongoing manufacturing process with one-site "recycling" - NOT "discarded" 1/85 final rule materials considered "solid waste" abandoned by being disposed of, burned, or incinerated or stored, treated, or accumulated before or in lieu of those activities Included certain recycling activities within definition EPA determines whether material RCRA solid waste when recycled by examining both material or substance itself and recycling activity involved. Final Rule 5 categories of "secondary materials" spent materials sludges by-products commercial chemical products scrap metal Secondary materials constitute "solid waste" when disposed of ; burned for energy recovery or used to produce a fuel; reclaimed; or accumulated speculatively if "solid waste" under reg. subject to RCRA regulation, UNLESS directly reused as ingredient or effective substitute for commercial product, 4

5 or is returned as a raw material substitute to its original manufacturing process "closed loop exception" Must not first be "reclaimed" (processed to recover usable product or regenerated) to be exempt EPA: exempt activities are like ordinary usage of commercial products. AMI: EPA authority under RCRA limited to controlling materials that are DISCARDED OR INTENDED FOR DISCARD relying on statutory definition of "solid waste" AMI: reuse & recycle rules applied to in-process secondary materials, NOT DISCARDED, exceeds EPA authority Congress granted EPA power to regulate "solid waste" Congress specifically defined as "discarded material" EPA defined "discarded material" to include materials destined for reuse in an industry's ONGOING production processes AMI: nothing has been DISCARDED, RCRA jurisdiction remains untriggered Statutory Interpretation, First Step - Analysis of Language Itself pursuit of Congress' intent start with assumption legislative purpose is expressed by ordinary meaning of the words used Congress defined "solid waste" as "discarded material" ordinary English meaning of "discarded" 5

6 "disposed of" "thrown away," or "abandoned" Encompassing materials retained for immediate reuse Strains everyday usage of term "discarded material" Whether, in light of expressed objectives & underlying problems in RCRA Congress using term "discarded" in ordinary sense "disposed of", or using in more open-ended to encompass materials no longer useful in their original capacity though destined for immediate reuse in another phase of industry's ongoing production process RCRA enacted to help States deal with increasing problem of solid waste DISPOSAL by encouraging search for & use of alternatives to existing methods of disposal (including recycling) Court: to fulfill purposes clear EPA need not regulate "spent" materials that are recycled and reused in an ONGOING manufacturing or industrial process. Court: these materials have NOT yet become part of the waste disposal problem rather, destined for beneficial reuse or recycling in a continuous process by the generating industry itself. Court: intent of Congress, and EPA reg. authority, limited to materials discarded by being disposed of, abandoned, or thrown away EPA's regulation of in-process secondary materials contravened Congress' intent AMC II : sludge to be later reprocessed for metal recovery in wastewater treatment 6

7 are part of waste disposal problem, not ongoing industrial process CHEMICAL WASTE MANAGEMENT, INC. v. EPA 869 F.2d 1526 (D.C. Cir. 1989) Phasing in land disposal restrictions (in thirds) 42 USC 6924(g)(4) First Third: may not be disposed unless treated to meet applicable disposal standards Or, disposal unit where no migration of hazardous constituents for as long as the waste remains hazardous EPA standards applicable to leachate produced from hazardous waste liquids, rainwater percolate through waste stored in landfill resulting fluid contains suspended components drawn from waste '80 EPA: DERIVED FROM RULE hazardous waste includes any solid waste generated from treatment, storage, or disposal of a hazardous waste including any sludge, spill, residue, ash, emission control dust or leachate, not including precipitation run-off Thus, Leachate derived from hazardous waste was itself a hazardous waste generally understood prior to '88 rulemaking '88 rulemaking WASTE CODE CARRY-THROUGH PRINCIPLE Leachate derived from multiple hazardous wastes deemed to contain each waste 7

8 from which generated ergo, to be treated to meet applicable standards for each underlying waste EPA 2d interpretative principle in '88 rulemaking hazardsous waste listings are retroactive once listed all wastes meeting description are hazardous wastes no matter when disposed RCRA does not require such wastes to be treated or moved from landfill no retroactive penalty on prior disposal of waste leachate to be managed as hazardous waste and treated to the applicable standards EPA: contaminated environmental media, leachate mixed with soil or groundwater through spills or leaking soil or groundwater subject to all applicable standards that would apply to original waste CWM challenges waste code carry-through principle negotiated settlement likely all multiple waste leachate rescheduled to third-third leachate treatability study to determine appropriate treatment standards Issues: whether improper retroactive rulemaking whether arbitrary & capricious by mandating contaminated media to be treated as hazardous waste 8

9 Court: not retroactive, no penalty for time of disposal restrictions, for managed actively after effective date of regs landfill, as practical matter, little choice but to actively manage its leachate Court: agency's interpretation of derived from rule eminently reasonable presumes leachate generated from hazardous waste is itself hazardous unless proved nonhazardous or treated to applicable standards reasonableness does not vary depending on time underlying waste was disposed. Court review of EPA's application of '80 rules to soil 2 fundamental principles First, agencies interpretation of its own regulations will be accepted unless it is plainly wrong Second, courts must show considerable deference to an agency's expertise on a highly technical question CWM: mix of soil & hazardous waste to be regarded as new & distinct substance to which presumption of hazardousness no longer applies EPA: hazardous waste cannot be presumed to change character when it is combined with an environmental medium thus, hazardous waste restrictions continue to apply to waste contained in soil or groundwater 9

10 EPA approach re contaminated environmental media consistent with derived from mixture rules est. in 1980 part of coherent regulatory framework EPA application of general principle consistently adhered to hazardous waste does not lose its hazardous character simply because it changes form or is combined with other substances EPA did not presume every mixture would present a hazard because potential combination of listed wastes infinite unable to devise workable, broadly applicable formula which would distinguish between hazardous & non-hazardous mixtures EPA: fair to shift to individual operator burden of establishing through delisting process, that its own waste mixture is not hazardous same logic applies to soil & groundwater combinations '84 RCRA amendments included soil in solvent & dioxin land disposal restrictions superfluous, if not presumed that media is also contaminant Court: factors need not COMPEL conclusion that soil & water combinations are hazardous entirely reasonable for EPA to reach conclusion given agency's broad discretion to interpret its own rules EPA regs 40 CFR 261.3(a)(2)(iii) exempt mixture which no longer exhibits any characteristic of hazardous waste identified in subpart C Edison Electric Institute v. EPA 2 F.3d 438 (D.C. Cir. 1993) 10

11 "characteristic" wastes not "listed" as hazardous RCRA: Congress authorized EPA regs to identify characteristics of hazardous wastes and listing particular hazardous wastes Toxicity characteristic '80 EPA protocol Extraction Procedure Test particular mismanagement scenario co-disposal of toxic wastes in actively decomposing municipal landfill which overlies groundwater aquifer Test intended to simulate actual leaching of wastes generator to mix representative sample with acidic leaching medium for 24 hours test to see if contains unsafe levels of 14 contaminants under drinking water standards EPA applies dillution & attenuation factor of 100 waste hazardous if presence of contaminant 100x standard DAF from point of leachate to point of human, environmental exposure '80 amendments exempted certain waste produced by mineral processing & fossil fuel combustion Court found only applied to high volume, low hazard wastes EPA applied to top 5% of largest individual waste stream facilities '84 amendments Congress expressed concern over Extraction Procedure Test, directed EPA to reevaluate Congress believed test deficient, underinclusive in identifying hazardous wastes 11

12 EPA adopted new "Toxicity Characteristic Leaching Procedure" (TCLP) American Mining Congress and Edison Elec. Inst. challenge EPA's application of generic mismanagement scenario to mineral processing & manufactured gas plant wastes AMC & EEI: TCLP violates mandate for more accurate test generic mismanagement scenario is based on factual assumptions that do not apply to mineral wastes AMC/EEI: aggressive leaching medium and 100 DAF far too severe to predict hazardousness of their mineral wastes EPA rejected "management-based" approach to identifying hazardous wastes would require separate toxicity test for each category of waste that is typically managed in a particular way EPA: RCRA requires identifying CHARACTERISTICS of hazardous waste 42 USC 6921(b)(1) most effective way to identify PROPERTIES of wastes that would pose a threat to human health & environment if mismanaged EPA: management based approach would raise complex enforcement problems difficulty in determining beforehand how any particular solid waste will be managed Court: nothing in RCRA mandate for more accurate TCLP (toxicity characteristics leaching procedure) dictates management based approach 12

13 use of generic mismanagement scenario is reasonable interpretation of statutory language EPA selected specific Municipal Solid Waste (MSW) landfill mismanagement scenario because most prevalent environmental hazard contamination of groundwater through leaching land-disposed wastes EPA rulemaking recognized MSW (municipal solid waste) leachate more aggressive media but chose particularly conservative scenario in view of statutory mandate to protect human health & enviro and, the broad statutory definition of hazardous waste long term leaching only incompletely understood Court: TCLP test must bear rational relationship to mineral wastes in order for agency to justify application of this toxicity test to those wastes to pass muster under APA EPA's relies on record where evidence does not demonstrate low volume mineral wastes have ever been disposed of in MSW landfills Rational relationship if EPA could show evidence on record mineral wastes were exposed to similar conditions to those simulated by the TCLP test Court: no evidence or explanation on record to justify EPA conclusion mineral wastes ever come into contact with any form of acidic leaching medium. Remand to allow EPA to provide fuller & more reasoned explanation for its decision to apply TCLP to mineral wastes 13

14 HAZARDOUS WASTE TREATMENT COUNCIL v. U.S. ENVIRONMENTAL PROTECTION AGENCY UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 886 F.2d 355; 280 September 15, , Congress amended the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C prohibit land disposal of certain hazardous solvents and wastes containing dioxins except in narrow circumstances to be defined by Environmental Protection Agency ("EPA") regulations petitioners seek review of EPA's final "solvents and dioxins" rule published pursuant to Congress' 1984 mandate conclude that the rule under review is consistent with RCRA Statutory Scheme Hazardous and Solid Waste Amendments of 1984 ("HSWA"), substantially strengthened EPA's control over the land disposal of hazardous wastes regulated under RCRA's "cradle to grave" statutory scheme Congress, believing that "land disposal facilities were not capable of assuring long-term containment of certain hazardous wastes," expressed the policy that "reliance on land disposal should be minimized or eliminated HSWA amended section 3004 of RCRA to prohibit land disposal of hazardous waste unless the waste is "pretreated" in a manner that minimizes "short-term and longterm threats to human health and the environment unless EPA can determine that the waste is to be disposed of in such a fashion as to ensure that "there will be no migration of hazardous constituents from the disposal [facility] 14

15 RCRA requires EPA to implement the land disposal prohibition in three phases, addressing the most hazardous "listed" wastes first. Administrator is obligated to specify those methods of land disposal of each listed hazardous waste which "will be protective of human health and the environment. "simultaneously with the promulgation of regulations... prohibiting... land disposal of a particular hazardous waste, the Administrator" is required promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste, OR 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. two categories of hazardous wastes, including the solvents and dioxins at issue Congress, however, declined to wait for phased EPA implementation of the land disposal prohibition. Congress imposed earlier restrictions, prohibiting land disposal after dates specified in the HSWA except in accordance with pretreatment standards or pursuant to regulations specifying "protective" methods of disposal. Rulemaking Under Review January 1986, EPA issued a notice of proposed rule-making announcing its draft implementation of the land disposal prohibition for solvents and dioxins Approximately ten months later, after receiving extensive public commentary on the draft EPA published a final solvents and dioxins rule differing in some respects from its draft approach differences were especially striking in EPA's implementation of section 3004(j) and section 3004(m) of RCRA, 15

16 governing the storage prohibition and treatment standards, respectively, for solvents and dioxins 3004(m) Treatment Standards Proposed Rule, EPA announced its tentative support for a treatment regime embodying both risk-based and technology-based standards technology-based standards would be founded upon what EPA determined to be the Best Demonstrated Available Technology ("BDAT") parallel risk-based or "screening" levels reflect "the maximum concentration [of a hazardous constituent] below which Agency believes there no regulatory concern for land disposal program and is protective of human health and the environment Proposed Rule provided these two sets of standards would be melded if BDAT standards more rigorous than relevant health-screening levels, latter would be used to "cap the reductions in toxicity and/or mobility that would result from BDAT "treatment for treatment's sake" would be avoided. if BDAT standards less rigorous than health-screening levels, BDAT standards would govern screening level would be used as "a goal for future changes to treatment standards as new & more efficient treatment technologies become available. when EPA determined that the use of BDAT would pose a greater risk to human health and the environment than land disposal, or would provide insufficient safeguards against the threats produced by land disposal screening level would actually become the 3004(m) treatment standard first alternative identified in the Proposed Rule (and the one ultimately selected by EPA) based purely on the capabilities of the "best demonstrated available technology Capping treatment levels to avoid treatment for treatment's sake, according to EPA, could be accomplished under this technology-based scheme by "the petition process" 16

17 if a prescribed level or method of treatment under section 3004(m) resulted in concentration levels that an owner/operator believed to be overly protective owner/operator could petition Agency to allow use of an alternative treatment level or method or no treatment at all by demonstrating that less treatment would still meet petition standard of protecting human health and environment. function served by health-screening levels of providing a default standard when the application of BDAT technology would itself pose a threat to human health and the environment could likewise be fulfilled by the petition process owner operator could petition Agency to allow continued land disposal of the waste upon a demonstration that land disposal of the waste would not result in harm to human health and the environment." Agency received comments supporting both approaches, but ultimately settled on the pure-technology alternative particular importance to EPA's decision were the comments filed by eleven members of Congress, all of whom served as conferees on the 1984 RCRA amendments. members of Congress argued strongly that [the health screening] approach did not fulfill the intent of the law scientific uncertainty inherent in risk-based decisions, Congress expressly directed Agency to set treatment standards based on capabilities of existing technology. Agency believes that the technology-based approach adopted in [the] final rule, although not the only approach allowable under the law, best responds to the above stated comments. legislative history supporting an approach under which owners and operator of hazardous waste facilities would be required to use "'the best [technology] that has been demonstrated to be achievable 17

18 agency reiterated that the chief advantage offered by the health-screening approach avoiding "treatment for treatment's sake" -- could "be better addressed through changes in other aspects of its regulatory program. EPA announced that it was "considering the use of its risk-based methodologies to characterize wastes as hazardous pursuant to section 3001 CMA challenges this aspect of the rule as an unreasonable construction of section 3004(m)'s mandate ensure that "short-term and long-term threats to human health and the environment are minimized." CMA argues that EPA has failed to explain the basis in terms of relevant human health and environmental considerations for its BDAT regime allegedly requires treatment in some circumstances to levels far below standards for human exposure under other statutes administered by EPA. CMA claims that EPA's action in promulgating a technology-based rule is arbitrary and capricious SECTION 3004(M) TREATMENT STANDARDS CMA challenges EPA's adoption of BDAT treatment standards in preference to the approach it proposed initially primarily on the ground that the regulation is not a reasonable interpretation of the statute the alternative that the agency did not adequately explain its decision to take the course that it did. CMA's primary challenge, that EPA's decision to reject the use of screening levels is a reasonable interpretation of the statute. EPA's justification of its choice is so fatally flawed that we cannot, in conscience, affirm it. grant the petitions for review to the extent of remanding this issue to the agency for a fuller explanation Consistency of EPA's Interpretation with RCRA Chevron Step I: Is the Statute Clear? 18

19 mandate of 3004(m)(1) Administrator is required to promulgate "regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized CMA reads the statute as requiring EPA to determine the levels of concentration in waste at which the various solvents here at issue are "safe" and to use those "screening levels" as floors below which treatment would not be required CMA :statute directs EPA to set standards only to the extent that "threats to human health and the environment are minimized Court: unpersuaded, however, that Congress intended to compel EPA to rely upon screening levels in preference to the levels achievable by BDAT. statute directs EPA to set treatment standards based upon either "levels or methods" of treatment. mandate makes clear that the choice whether to use "levels" (screening levels) or "methods" (BDAT) lies within the informed discretion of the agency as long as the result is "that short-term and long-term threats to human health and the environment are minimized." "minimize" something is, to quote the Oxford English Dictionary, to "reduce [it] to the smallest possible amount, extent, or degree Congress recognized, in the very amendments here at issue, that there are "long-term uncertainties associated with land disposal," such uncertainties, it cannot be said that a statute that requires that threats be minimized 19

20 unambiguously requires EPA to set levels at which it is conclusively presumed that no threat to health or the environment exists. not to say that EPA is free, under 3004(m), to require generators to treat their waste beyond the point at which there is no "threat" to human health or to the environment Congress's concern in adopting 3004(m) was with health and the environment would necessarily make it unreasonable for EPA to promulgate treatment standards wholly without regard to whether there might be a threat to man or nature concern is better dealt with, however, at Chevron's second step statute does not unambiguously and in all circumstances foreclose EPA from adopting treatment levels based upon the levels achievable by BDAT must now explore whether the particular levels established by the regulations supply a reasonable resolution of the statutory ambiguity. Chevron Step II: Is EPA's Interpretation Reasonable? screening levels that EPA initially proposed were not those at which the wastes were thought to be entirely safe EPA set the levels to reduce risks from the solvents to an "acceptable" level, and it explored, at great length, the manifest (and manifold) uncertainties inherent in any attempt to specify "safe" concentration levels The agency discussed, for example, the lack of any safe level of exposure to carcinogenic solvents extent to which reference dose levels (from which it derived its screening levels) understate the dangers that hazardous solvents pose to particularly sensitive members of the population necessarily artificial assumptions that accompany any attempt to model the migration of hazardous wastes from a disposal site lack of dependable data on the effects that solvents have on the liners that bound disposal facilities for the purpose of ensuring that the wastes disposed in a facility stay there, CMA suggests, despite these uncertainties, that the adoption of a BDAT treatment regime 20

21 would result in treatment to "below established levels of hazard." EPA's catalog of the uncertainties inherent in the alternative approach using screening levels supports the reasonableness of its reliance upon BDAT finding no merit in CMA's contention that EPA has required treatment to "below established levels of hazard, we find that EPA's interpretation of 3004(m) is reasonable. Was EPA's Explanation Adequate? Supreme Court has made it abundantly clear that a reviewing court is not to supplement an agency's reasons for proceeding as it did, nor to paper over its plainly defective rationale reviewing court should not attempt itself to make up for such deficiencies [in the agency's explanation]; may not supply a reasoned basis for the agency's action that the agency itself has not given. 'uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'" determine whether we can affirm EPA's action must parse the language of the Final Rule to see whether it can be interpreted to make a sensible argument for the approach EPA adopted EPA, in its Proposed Rule, expressed a tentative preference for an approach that combined screening levels and BDAT. indicated that it thought either that approach or BDAT alone was consistent with the statute recognized that there were myriad uncertainties inherent in any attempt to model the health and environmental effects of the land disposal of hazardous wastes despite those uncertainties, the better approach was to adopt combination of screening levels and BDAT. Final Rule, it rejected its earlier approach, and adopted a regime of treatment levels defined by BDAT alone. 21

22 inadequacy of EPA's explanation comments on the proposed rule favored the first approach; that is, the use of screening levels to "cap" treatment that can be achieved under BDAT eleven members of Congress, argued strongly that this approach did not fulfill the intent of the law. because of the scientific uncertainty inherent in risk-based decisions, Congress expressly directed the Agency to set treatment standards based on the capabilities of existing technology. Agency believes that the technology-based approach adopted in today's final rule, although not the only approach allowable under the law, best responds to the above-stated comments final rule establishes treatment standards under RCRA section 3004(m) based exclusively on levels achievable by BDAT members of Congress, chastised the agency use of screening levels was inconsistent with the intent of the statute because of the uncertainties involved, Congress had mandated BDAT alone be used to set treatment standards EPA determined that the "best respon[se]" to those comments was to adopt a BDAT standard explanation is inadequate members of Congress have no power, once a statute has been passed, to alter its interpretation by post-hoc "explanations" of what it means; consider legislative history because it is just that: history forms the background against which Congress adopted the relevant statute. Post-enactment statements are a different matter, and they are not to be considered by an agency or by a court 22

23 as legislative history agency has an obligation to consider the comments of legislators, of course, but on the same footing as it would those of other commenters; entire relevant text of the Final Rule, EPA neither invokes nor discusses the uncertainties inherent in the land disposal process in support of its determination to use BDAT. only mention of the concept is in its description of the commenters' argument that, because of such uncertainties, Congress mandated BDAT argument that EPA rejected. may be that EPA intended that reference to act as an incorporation of all the uncertainties it outlined in its Proposed Rule intent, if indeed it exists, is so shrouded in mist that for this court to say that we could discern its outlines would be as illogical as the agency's explanation in the Final Rule itself. we grant the petitions for review in this respect 23