*1 TREATMENT HAZARDOUS WASTE Petitioner,
COUNCIL,
v. ENVIRONMENTAL PROTECTION
U.S.
AGENCY, Respondent, Institute, al., et Chemi- Electric
Edison Association,
cal Manufacturers
Intervenors. 86-1677, 86-1657,
Nos. 87-1016
and 87-1057. Appeals,
United States Court of
District of Columbia Circuit.
Argued March 1989. Sept.
Decided *2 Inc., Chemetco,
pearances petitioner for No. 87-1057. D.C., Jackson, Washington, K.
James Colleli, Jr., appear- entered Ralph J. and Petroleum intervenor American ances for Block, Arnold S. in No. 86-1677. Institute Pa., appearance Philadelphia, entered Insti- Petroleum American for intervenor 87-1459. tute in Nos. 87-1016 and WALD, Judge, Before Chief GINSBURG, and D.H. SILBERMAN Judges. Circuit Opinion PER CURIAM. concurring part and Opinion filed concurring in the result Judge SILBERMAN. Circuit of Orders of Review Petitions for Agency. Protection Environmental PER CURIAM: McCrum, whom Timothy with Robert 1984, Congress amended the Resource In Bloom, City, David R. New York L. Jane (“RCRA”), Recovery and Act Conservation Strait, Ridgeway and M. Case, S. Donald (1982 Supp. IV 6921-6991 & U.S.C. § brief, Jr., petitioners for Hall, on the were 1986), certain prohibit disposal Treatment Council Hazardous Waste containing solvents and wastes hazardous Defense Council. Natural Resources circumstances to except dioxins narrow Smith, II, David F. with whom T. John by Environmental Protection be defined Kastner, Washington, M. and Kenneth Zoll (“EPA”) Hazard- regulations. See brief, D.C., Mfrs. Chemical were on Amendments, and Solid Waste ous Ass’n, in No. 87-1016 and inter- petitioner 6924(e) (Supp. IV 201(a), 42 U.S.C. and 86-1677. 86-1657 venor Nos. cases, peti- In these consolidated EPA’s final “sol- seek review of tioners E.P.A., Silverman, Atty., with E. Steven pursuant published rule vents and dioxins” Gen., Marzulla, Atty. Asst. Roger whom J. conclude Congress’ mandate. We Ward, Mary Ryan Elizabeth Lisa F. is consistent the rule under review D.C., Justice, Washington, Attys., Dept, of RCRA, aspect remand one with Counsel, Jensen, Gen. and Lawrence agency for further ex- rulemaking to the brief, respondent. E.P.A., were on the planation. brief for was on the Angus Macbeth Management, Waste petitioner Chemical I. Inc., in No. 87-1459. Douglas H. Weissman William R. Statutory A. Scheme. Institute, al.) et (for Electric Edison Green Amend- Waste Hazardous Solid Llew- S. Frick and Thomas and G. William (“HSWA”), Pub.L. No. 98- ments (for D.C., Pe- American ellyn, Washington, alia, (1984), sub- inter Stat. 3221 Institute) joint brief were on
troleum control over stantially strengthened EPA’s for intervenors. reg- wastes disposal of hazardous the land appear- entered an Warren Jacqueline M. grave” “cradle under RCRA’s ulated Resources De- Natural petitioner ance for preambular lan- statutory scheme. Council, Inc., in No. 86-1677. fense HSWA, believing Congress, guage to the capa- were disposal facilities B. that “land Mark F. Voorhees and Robert Van containment assuring long-term D.C., ap- ble of Halverson, Washington, entered wastes,” wastes, expressed the Congress imposed certain hazardous earlier restric- disposal policy tions, that “reliance on land prohibiting after dates minimized or eliminated.” 42 should be specified in except HSWA accord- 6901(b)(7). In U.S.C. order to effectuate ance pretreatment pursu- standards or policy, amended HSWA section 3004 of regulations ant to specifying “protective” *3 prohibit disposal RCRA land hazard- of 6924(e)(1). disposal. methods of Id. § ous “pretreated” waste unless waste is prohibitions, These applied to the sol- in a manner that minimizes “short-term HSWA, vents and dioxins listed in the were and long-term threats to human and health 8, to take effect November 1986. Id. environment,” 6924(m), id. unless or § In order to further RCRA’s pur- basic EPA can determine that the waste is to be pose mandating treatment of hazardous disposed of in such a fashion as to ensure disposal, wastes lieu of land migration that “there will be no of hazard- provided further storage of wastes disposal ous constituents from the [facili- falling within disposal prohibition land 6924(d)(1),(e)(1), ty]....” (g)(5). Id. & § “prohibited storage be unless such amended, requires As RCRA to im- EPA solely for the purpose of the accumulation plement disposal prohibition the land of such quantities of hazardous waste as phases, addressing three hazard- most are necessary proper to facilitate recovery, ous “listed” wastes first. id. See treatment disposal.” or 6924(j). Id. Con- In 6924(g).1 accordance with statu- strict gress permitting believed that storage of deadlines, tory obligat- Administrator is large- quantities of waste as a means of specify dispos- ed to those methods of land forestalling required treatment would in- al of each listed hazardous which volve health equally threats serious to protective “will be of human health and posed those by disposal, land and therefore addition, In environment.” Id. “[simulta- opted large part you for a “treat go” neously promulgation with the regula- regulatory regime. prohibiting disposal tions ... ... land of a waste, particular hazardous the Adminis- B. The Rulemaking Under Review. trator” is promulgate regulations specifying those In January EPA issued a notice of or methods any, levels proposed rule-making announcing its draft substantially which toxicity diminish the implementation disposal prohibi- substantially waste or reduce the tion for solvents and dioxins. See 51 Fed. migration likelihood of of hazardous (1986) (hereinafter Reg. 1602 “Proposed constitutents from the waste so that Rule”). later, Approximately ten months long-term and short-term to hu- threats receiving after public extensive commenta- man and the health environment are min- ry blueprint, published on the draft imized. final differing solvents and dioxins rule 6924(m). Id. § respects some approach. from its draft 40,572 (1986) (hereinafter See 51 Fed.Reg.
Respecting
categories
two
of hazardous
wastes,
Rule”).
“Final
These differences were
including the solvents
es-
dioxins
Congress, however,
pecially striking
implementation
in EPA’s
issue here2
declined
phased
3004(m)
implementation
3004(j)
to wait for
of section
and section
RCRA,
prohibition.
governing
storage prohibition
For these
given
dividing
aspect
regulations governing
1. EPA was
the task of
wastes
One
of EPA’s
presently "listed” as hazardous under
into
RCRA
recently upheld
"first third” of
wastes was
these
hazard,"
according
thirds
to their "intrinsic
Management,
on review in Chemical-Waste
Inc.
6924(g)(2) (Supp.
keeping
U.S.C.
IV
EPA,
(D.C.Cir.1989).
v.
provision generator did not leave storage for proving burden genera- bear the altogether. responsibility out pur- proper period was for one-year over obliged “whether to determine tor still (codified at 40 id. poses under RCRA. See disposal.” prior to his waste he treat 268.50(c)(1988)). C.F.R. § requiring specifically than Id. “[RJather rule, storage testing, Characterizing generator the final to conduct [how- statutory bur- effect, de- “shifting Agency [proposed allow ever], as a to] “effectively allows proof” which meet den of of whether wastes termination statutory prohibi- year override either one to be based on regulatory thresholds Hazard- storage, petitioners against tion” knowledge the characteristics testing (“HWTC”) Council Waste Treatment ous found waste.” Id. The Defense Coun- Resources the Natural flexible, desirable because proposal “[i]t rule as incon- (“NRDC”) challenge the cil testing, fits require redundant does not 3004(j) of RCRA. with section sistent scheme for regulatory current into the requires the test- analysis plan and Wastes Testing Responsibility liability place where ing to take Disposal. Prior disposal facili- the land disposal exists—at and to as to whether ty.” A determination at 1691. re- of a waste is degree treatment
what resem- substantial Final Rule bears *6 upon depends disposal prior to quired land EPA, initially proposed to that blance hazardous constituents the concentration agen- exception. As the principal with one these facilitate determina- To the waste. ap- the cy explained, [treatment] “[b]ecause the compliance with tions and to ensure Final the proach promulgated Rule] [in applicable and prohibitions disposal land levels, screening cap BDAT does not standards, to im- proposed EPA to require treatment meet wastes will more mandatory test- for requirements plement Final treatment standards.” specified the Proposed Rule ing in some circumstances. .40,597. expanded role Given Rule industry, EPA decided for the treatment immediately testing confronted impose require- Rule to the Final who, genera- among and land question of facilities with the on both treatment ments disposal But, and fol- tors, land the treatment facilities facilities. disposal responsibility the did facilities, insofar as proposed should shoulder rule it lowed the disposal. prior to by generators. See id. testing require testing the waste not available, Thus, were to either a treat- sending alternatives While several when waste dispos- directly that the land or to initially proposed facility pretreatment for EPA ment responsible per- Rule the Final facility disposal facility, alone al a land Rule at 1692. their determina- testing. Proposed to generators mits base of hazardous the concentration facility tions as to disposal the approach, Under this analy- on “waste in the waste analysis of the constituents an either must conduct waste, data, knowledge or both.” sis analysis of waste or obtain waste the basis their No matter what Similarly, or treater. generator from forwarding determinations, disposal a operator of land or owner disposal facilities directly to land wastes arrange generator for the facility could to the facili- certify their conclusions part supply or facility to all or treatment certifications, under However, operators. False ties’ testing data. pen- in criminal may result supply Final treater did not generator or if the (1988); 268.7 see 40 C.F.R. disposal alties. See testing and the data (Supp. IV 6928(d)(3) 42 U.S.C. accept to also operator chose facility owner or the likelihood substantially reduce NRDC contend or and HWTC Petitioners from of hazardous constitutents migration for EPA capricious arbitrary that long-term that short-term waste so and land of treatment operators require to environ- and the health human threats facilities, generators, not disposal 42 U.S.C. minimized.’’ are ment prohi- within the test wastes 6924(m)(l). bition. requiring the statute as reads CMA II. Section 3004(m) Treatment concentration Standards the levels of determine here at various solvents at which adoption EPA’s challenges CMA those “screen- and to use are “safe” issue preference standards BDAT treatment below which treatment as floors ing levels” primar initially proposed the approach supports required. not be CMA regulation is ground that ily on interpretation with the observation the statute. interpretation of reasonable EPA to standards set directs statute Edison Intervenors obliquely, and CMA to human health extent that “threats Insti Petroleum and the American Electric minimized.” We are the environment alternative in the argues explicitly, tute however, unpersuaded, explain adequately agency did not rely upon compel intended it did. course that to take the its decision to the levels screening preference chal conclude, primary to CMA’s We BDAT. achievable reject use decision lenge, EPA’s interpre ais reasonable EPA to set screening levels directs statute find, how We also upon statute. either tation based standards choice of its justification ever, treatment. Such that EPA’s “levels or methods” cannot, in fatally flawed the choice is so clear makes mandate grant levels) conscience, We therefore (screening it. affirm “levels” to use whether extent of to the in (BDAT) petitions for review within the lies “methods” agency for long to the agency, as remanding this issue discretion formed long-term explanation. fuller “that short-term result is the environ health and to human threats Interpreta- Consistency A. The To “minimize” are minimized.” ment *7 with RCRA. English tion is, quote the Oxford something to to the smallest Dictionary, to “reduce [it] inter- evaluating an Our role amount, extent, degree.” But or possible as strict- enabling statute is its pretation of very amend in the recognized, simply We it is stated: ly circumscribed issue, “long- there that here at ments to ascertain statute examine first dis with land associated uncertainties term course forecloses the clearly it whether 6924(d)(1)(A). In 42 U.S.C. posal,” taken; ambigu- if it is agency has uncertainties, be said it cannot of such face gowe question, respect to that ous threats requires that a statute agency’s inter- whether to determine requires EPA unambigously minimized of resolution a reasonable pretation is conclusively pre it is at which set Re- v. Natural ambiguity. Chevron envi or the to health threat that no sumed 837, Council, 467 U.S. sources Defense exists. ronment 2781-83, L.Ed.2d 842-45, 81 104 S.Ct. (1984). by 694 CMA’s persuaded all we at Nor are EPA, F.2d of NRDC v. interpretation I: Is the Statute Step 1. Chevron banc), (en (D.C.Cir.1987) 1146, 1163 Clear? permitted EPA was we held which feasibility technological 3004(m)(l): "substitute[ ] repeat the mandate We un- consideration primary health promul- required to the Administrator Air the Clean Act].” Section [of levels or der those specifying “regulations gate Administrator requires the provision That any, sub- which methods the level “at pollution standards set air toxicity the waste stantially diminish provides ample judgment supply which in his an tions a reasonable resolution of the margin safety protect public ambiguity. statutory 7412(b)(1)(B). health.” 42 U.S.C. vinyl had set emission standards for chlo- Interpre- Step 2. Chevron II: Is EPA’s ride, however, solely on the level “based tation Reasonable? attainable the best available control initially screening levels that EPA technology,” despite F.2d at proposed were not those at which the finding that such levels would create health thought entirely safe. wastes were to be risks. It had neither stated that the risks Rather, EPA set the levels to reduce risks insignificant, explained found were nor level, “acceptable” from solvents to an accepted how the risks were consistent explored, great length, and it at the mani- statutory duty with its provide “an am- (and manifold) fest uncertainties inherent ple margin safety.” Id. This court held any attempt specify “safe” concentra- failing had erred to consider discussed, tion levels. The for ex- technology whether the best available ample, any expo- the lack of safe level of provide statutorily sufficient man- solvents, carcinogenic Fed.Reg. sure to margin safety. dated Id. at 1164-66. 1,628; at the extent to which reference however, Contrary implication, to CMA’s (from dose levels which it derived its hold, imply, the court did not even levels) screening dangers understate the require gen- converse—that EPA could not pose particular- that hazardous solvents technologies erators to use that would re- ly population, sensitive members of the id. point duce emissions to a below that which 1,627; necessarily assump- artificial provide “ample margin an of safe- accompany tions that any attempt to model Indeed, ty.” the court noted that “Con- migration of hazardous wastes from a gress recognized in ... site, 1,642-53; id. at and the lack determination always of what is ‘safe’ will dependable data on the effects that sol- uncertainty be marked scientific vents have on the dispos- liners that bound thus exhorted the Administration to set ... purpose al facilities for the ensuring provide ‘ample standards that will mar- disposed facility stay that the wastes in a 1165; gin’ safety,” id. we then con- there, 1,714-15. Indeed, par- id. at several assured, ‘safety’ cluded that “[o]nce ties made voluminous comments on the Administrator should be free to dimmish as Proposed Rule to the effect that EPA’s statistically much of the determined risk as probabilities estimates of the various were possible by setting the standard at the low- problematic recog- far more than even EPA est level.” feasible See, nized. e.g., Comments of Natural Re- free, say This is not to that EPA is under Council, 29,GOO- sources Defense Record at *8 3004(m), require generators to to treat § beyond point their waste at which there suggests, despite CMA these uncertain- is no “threat” to human health or to the ties, adoption of a BDAT treat- Congress’s environment. That concern in regime ment in would result treatment to 3004(m) adopting was with health and § “below established levels of hazard.” It necessarily
the environment would
make it
proposition
entirely
relies for this
almost
promulgate
EPA
unreasonable for
to
treat-
upon a chart
in which it contrasts the
wholly
regard
ment standards
without
to
(1)
BDAT levels with
levels EPA has de-
might
whether there
be a threat to man or
fined as “Maximum Contaminant Levels”
with,
nature. That concern is better dealt
(MCLs)
Drinking
however,
for,
under the Safe
Water
step;
at
second
Chevron’s
Act; (2)
proposed “Organic Toxicity
EPA’s
having concluded that the statute does not
Characteristics,” threshold levels
unambiguously
in
below
and
all circumstances
EPA
which
will not list a waste as hazard-
adopting
foreclose EPA from
treatment
by
having
particu-
reason of its
in it a
upon
by
levels based
achievable
ous
levels
BDAT,
toxin;
explore
(3)
we
lar
levels at which EPA has
must now
whether the
particular
genera-
by
regula-
recently granted petitions by
levels established
waste
21,649
21,648,
Fed.Reg.
is,
waste,
Proposed
that
particular
a
“delist”
tors to
added).
(1986)
Thus it is
(emphases
clear
wastes that
the list of
it from
to remove
levels below the
wastes with toxicant
points out
that
hazardous. CMA
are deemed
pose
to
may still
“threats
require OTC thresholds
would
BDAT standards
cases,
environment.”
are,
human health
many
in
[or]
levels that
to
added).
21,648 (emphases
lev- at
“established
below these
significantly
els of hazard.”
“delisting lev-
Finally,
points to the
CMA
comparison.
appropriate points of
els” as
EPA had determined
If
indeed
misleading, however.
The
is a bit
pointed to
term
three levels
any of the
wastes
response
in
particular
EPA delists
wastes
human health
no
to
posed
threat
CMA
see,
petitions,
e.g., 42 U.S.C.
to individual
environment,
little
have
or the
formal,
6921(f)(1),
adopted
it has not
concluding that it
unrea-
in
hesitation
any
facto,
levels below which
or even de
EPA to mandate treatment
for
sonable
EPA has del-
fact,
delisted. That
how- waste will be
In
substantially lower levels.
circumstances,
isted,
particular
wastes
CMA
to which
ever,
of the levels
none
high-
of solvents
containing concentrations
purports to
the BDAT standards
compares
the BDAT stan-
er than
called
safety is assured
those
a level at which
establish
nothing
argument.
adds
CMA’s
and the envi- dards
health
to human
or “threats
gener-
a
standards establish
Each is a level
are minimized.”
ronment
approach, requiring that all wastes
un-
ic
purpose and
a
for different
established
to a
be hazardous be treated
set
statutory
deemed to
criteria
set of
a different
der
to health
to minimize threats
here;
level
order
each is therefore
us
concern
than
If a waste is
environment.
to-
we undertake
inquiry
irrelevant
hazardous,
gen-
individual
listed as
day.
meet-
dispose
of without
erator wants
levels,
example,
drinking
water
standards, may petition
ing
the BDAT
requiring
a scheme
under
are established
delisted.
If
particular
its
have
level at which “no
“goals”
to set
delisting petition,
grants
effects
anticipated adverse
known or
affected;
generally
petitioner is
persons occur.”
U.S.C.
health of
remains
level of treatment
is then to set MCLs
300g-l(b)(4). EPA
inconsistency
Hence, there is no
same.
“feasible,” taking
goals
to its
as close
level,” accepted in
“delisting
between
account,
things,
treat-
other
among
into
circumstances,
permits
particular
(5).
300g-l(b)(4),
costs.
U.S.C.
ment
§§
particular contaminant
of a
higher level
only to deal
goals are set
Since SDWA
generally
BDAT level otherwise
then
ef-
adverse health
anticipated”
“known or
applicable.
fects,
human
health
a mere “threat”
uncertain-
Moreover,
sum,
catalog of the
enough in
context.
in the alternative
ties
inherent
are set without reference
levels
SDWA
the reason-
screening
supports
using
Finally, EPA
to the environment.
threats
upon BDAT instead.
MCLs;
reliance
ableness of its
setting
consider costs
finding no merit
CMA’s
Accordingly,
no similar limitation
there
required treat-
has
contention
RCRA.
haz-
established levels
ment to “below
*9
lev-
the
Similarly,
promulgating
OTC
ard,”
interpretation of
find that EPA’s
we
that,
establishing
els, EPA made clear
“[i]n
3004(m)
reasonable.
is
for ar-
scientifically justifiable approach
a
suggests
colleague
that
concurring
Our
levels], EPA wanted to as-
riving at [OTC
the
reasonableness
a
our discussion
high degree
that
sure a
of confidence
“per-
unnecessary, if not
BDAT
standard
toxicants at concen-
which releases
Con.Op.
impossible.”
haps analytically
pose
above
level]
trations
[OTC
given
impression
Contrary to the
Hazard-
to human
hazard
health.”
however, the basis
separate opinion,
his
System; Identifi-
Management
Waste
ous
interpretation
...,
find EPA’s
upon which we
Waste
Listing
Hazardous
cation
however,
ed,
despite
not one that
reasonable here is
we have
those uncertain-
ties,
supplied,
put
the one EPA itself
forth.
approach
adopt
the better
was to
discussing
In
Initial Rule document
screening
combination of
levels and BDAT.
levels,
screening
and in
BDAT as well
Nevertheless,
Rule,
rejected
in the Final
it
court,
presented
EPA has
its briefs to this
approach,
adopted
regime
its earlier
precisely
arguments
persuasive
we find
by
treatment levels defined BDAT alone.
While,
see,
argu-
here.
as we shall
those
fully
convey
inadequacy
order
inadequate
justify
the choice
ments are
explanation,
quote
of EPA’s
we
the rele-
made,
Rule, in
in the Final
favor of BDAT
portion
length:
vant
of the Final Rule at
against screening
levels—which also
Although a number of comments on
present
approach—
seem to
a reasonable
proposed
rule
ap-
favored the first
they
ap-
do demonstrate
the BDAT
proach;
is,
screening
use of
proach is reasonable.
“cap”
levels to
that can be
BDAT,
achieved under
several commen-
Explanation Adequate?
B.
Was
ters, including eleven members of Con-
Supreme
The
Court has made it abun-
gress, argued strongly
ap-
dantly
reviewing
clear that a
court
not
proach did not fulfill the intent of the
supplement
agency’s
pro-
an
reasons for
They
law.
asserted that because of the
did,
ceeding
paper
as it
nor to
over its
uncertainty
scientific
inherent
in risk-
plainly
reviewing
defective rationale: “The
decisions,
based
Congress expressly di-
attempt
up
court should not
itself to make
Agency
rected the
to set treatment stan-
agency’s expla-
for such deficiencies
[in
dards based
capabilities
on the
of exist-
nation];
may
supply
not
a reasoned
ing technology.
basis
action
agen-
Agency
believes that the technolo-
cy
given.”
itself has not
Motor Vehicles
gy-based approach adopted
today’s
fi-
Ass’n v. State Farm Mut.
Manufacturers
Auto
rule, although
nal
only approach
not the
Co.,
29, 43,
Ins.
U.S.
103 S.Ct.
law,
responds
allowable under the
best
2856, 2866-67,
(1983)
As we have in its kind of originally risk-based standard expressed preference a tentative proposed by However, Agency. approach screening combined plain language of the It statute does not thought and BDAT. indicated that preclude technology-based approach. either that BDAT alone was statute, This recognized legislative consistent with the is made clear his- myriad tory accompanying that there were uncertainties inher- introduction of *10 3004(m) any attempt ent in the final language. to model the health and legislative history provides environmental effects of the land that “[T]he initially of hazardous requisite wastes. It conclud- levels of methods of treat- [sic] is but ours power, in belongs to those tory” should by Agency ment established things, scheme of In our among them. not has been demonstrated that the best history it is because legislative consider intent that “[T]he achievable” to be the back- It forms history. that: just of available utilization require is to here adopted Congress against which ground dis- of continued technology in lieu state- Post-enactment relevant statute. (Vol. treatment.” prior posal without matter, they are a different are 25, ments ed., July 9178, (daily 130, Cong.Rec. by a agency or an be considered not to Thus, acting within EPA is 1984)). has An history. legislative court in select- by the statute vested authority comments to consider the obligation an regulation final promulgate ing [sic] course, foot- the same on legislators, alternative proposed using its commenters; other those of ing it would based standards setting treatment have, may as Justice comments such BDAT. context, said a different Frankfurter major its that believes power to lacking persuade, “power to ap- the risk-based adopting purpose Co., 323 v. & Skidmore control.” Swift (i.e., to allow dif- proposal proach 161, 164, 89 L.Ed. S.Ct. U.S. low-risk, relatively standards ferent (1944). wastes) be better ad- may low-hazard aspects recognized in other EPA changes whether through It is unclear dressed hand, example, point. For the one regulatory program. this fundamental On of its of its considering adoption risk- of BDAT- use suggested EPA it that is characterize to the com- methodologies “best-respond[ed]” only regime based pursuant to section statute suggesting that the hazardous wastes as ments hand, went the other a rule. On length establish that some on at 40,578. Fed.Reg. at screening error, that were comments issued the after To summarize: under statute. permissible levels commenters, includ- Rule, some Proposed words, that “rationale,” in other EPA’s Congress, chastised members ing eleven (among oth- Congress members several the use ground that agency on Proposi- that ers) upon it the claim urged with the inconsistent levels was screening BDAT”) re- (“Congress mandated tion X They stated the statute. intent of BDAT”), (“EPA adopts Result A quires involved, Con- the uncertainties because of X is inaccu- Proposition although and that alone be that BDAT mandated gress had to the commenters rate, response the best EPA de- standards. used to set A. adopt Result is to response]” “best termined bald by anything added isNor a BDAT adopt towas those comments initially prefer- reason for that its however, assertion that ei- emphasized, It standard. levels) “may be” (screening B ring Result statute consistent with ther course in the stat- changes other served required to better (and it was therefore Rule, EPA Proposed In its asserted, utory scheme. alone). it Finally, use BDAT the various analysis of had, extensive after major purpose its explanation, that without opposite conclu- alternatives, to the come “may screening proposing initially context, for insufficient, in that It is changes in sion. through addressed be better direction in a different proceed EPA to program,” regulatory of its aspects other unexplained anof simply on the basis aspect of one such gave example might have statement unelaborated changed. might be oth- concluded it earlier wrong when been It inadequate. explanation This erwise. members saying that go without should Final text relevant In the entire a statute power, once have no nor discusses invokes EPA neither interpretation alter passed, to has been dis- in the inherent the uncertainties what “explanations” by post-hoc its determina- support of process in posal where “his- means; may be societies there *11 366 however,
tion to use BDAT. oped, mention of in service of the role of the concept description is in its the judge of com- trial in the common-lawtribunal. To that, argument judge menters’ because of such keep jury enable the “to within uncertainties, Congress action,” mandated BDAT— the of party bounds reasonable argument rejected. bearing While it proof the burden of had a thresh- may be that EPA intended that responsibility reference old satisfying judge incorporation to act as an of all the uncer- that sufficient evidence had been advanced Proposed Rule, in tainties it outlined “to form a reasonable basis for ver- challenges many assumptions 2487, all the to its dict.” discharge at 293. The § response submitted in that commenters production” this so-called “burden of awas intent, Proposed prerequisite, law, indeed it getting at common exists, is so shrouded mist that for jury one’s case at all. say court to that we could discern its out- proceedings, administrative illogical lines would be as the provides APA a default rule allocating for explanation in the Final Rule itself. proof regulatory burdens when statutes do Accordingly, grant petitions for not set separate forth Specifically, rules. respect.
review this proponent order,” “the of a usually rule or the agency proceedings charging statu StoRage III. Section 3004(j) Prohibition violations, tory proof.” “has the burden of HWTC and contend that 556(d) (1982). NRDC the Ad- 5 held, U.S.C. We have § regulation allowing genera- ministrator’s though, that the APA uses the term in its periods tors to store wastes on-site secondary for application; “the ‘burden of up year to one unless EPA proof’ “can demon- upon it casts ‘proponent’ is the storage solely strate that such was not for coming burden of proof, forward with purpose accumulating]” quantities not the persuasion.” ultimate burden of of waste suitable 40 C.F.R. Fund, Environmental Inc. v. Defense 268.50(b)(1988), Congress’ EPA, violates “plain 998, (D.C.Cir.1976) 548 F.2d § 1013 enacting 3004(j) denied, intent” section 925, 2199, cert. 431 U.S. 97 S.Ct. According petitioners, RCRA. to these (1977); accord, this L.Ed.2d 239 Old Ben Coal provision’s prohibition flat against storage Corp. v. Bd. Operations Interior Mine of wastes storage solely 25, “unless such Appeals, (7th Cir.1975). 523 F.2d As [proper purposes],” 42 6924(j) U.S.C. Report the House accompanying the APA 1987), (Supp. requires V explains, [556(d)] “section means that ev —and not EPA—to proving bear the burden of ery proponent of a rule or order or the storing prohibited their motives in denial thereof has the coming burden of wastes are consistent with 3004(j), forward with sufficient evidence therefor.” Rep. no matter what the “By circumstances. H. 79th 2d Sess. Cong., No. shifting statutory proof (1946), burden of Cong. U.S.Code & Admin.News ”, told, EPA ... we are effectively “the rule p. 1195. While the locus of the ulti year allows a one override of statutory persuasion may mate burden of be unclear prohibition.” —indeed, may opponent rest on the of an order, see K. Admin. L. Davis, petitioners It is unclear to what refer (2d 1980) 16.9 at 258 ed. Treatise —it they speak “statutory when burden beyond doubt that the initial burden of law, proof.” At common the “burden of going prima forward with a case of facie proof” concept bore two somewhat dissimi- unlawful conduct rests on the agency lar meanings. applications, In classical violation, charging statutory unless the party carrying proof the burden of bore the regulatory provides statute otherwise. nonpersuasion factfinder; risk of words, proof” other “burden custom- petitioners allege Insofar as that EPA arily implied persuasion.” the “burden of has going shifted this threshold burden of (Chadbourn Wigmore, EVIDENCE regulated forward from the industry to it- rev. A secondary meaning RCRA, devel- self in contravention of their con-
367 thus, Administrator, to as Were the the APA.4 aground on runs plainly tention gen noncompliance penalties against sess guiding provisions, the APA’s under For “ generator had in erator the belief that presume agency is entitled ‘[no] improp prohibited wastes for accumulated any of any person or status conduct of the generator would enti purposes, the be er improper” or unless is unlawful enterprise charges public in a agency’s tled to air the oth provides organic statute agency’s the hearing. 42 U.S.C. factfinding See Fund, Environmental erwise. Defense 6928(b) any such (Supp. And at V § S.Rep. Inc., (quoting at 1014-15 548 F.2d Administrator, “propo as the hearing, the (1945)); 22 752, Cong., 1st Sess. No. 79th order, agency compliance nent” AFL- Dept., Union Industrial see also least to come forward at be Inst., 448 Petroleum v. American CIO suggesting im case prima with a facie 2844, 61, 2869 607, n. 100 S.Ct. 653 & U.S. 556(d) (1982); storage. 5 U.S.C. proper § (1980) (opinion of 61, 1010 65 L.Ed.2d n.& Fund, Inc., Environmental see Defense nothing in J.). point Stevens, Petitioners 1014-15; Corp., F.2d at Old Ben Coal implicitly or explicitly purports that RCRA challenged the at 30. As we 523 F.2d read placing rule background the APA’s to alter such, in simply it sets forth regulation, as on going of forward threshold burden this APA’s default rule terminology the RCRA of section language The agency. wit, production; of regarding the burden produc of as to allocations 3004(j)is silent can that demonstrate “unless matter, (or, ulti that burdens tion storage prohibited generator’s] [of [the persuasion) between of burden mate was not year] less than one wastes for regu (the charging party) and agency of purpose of accumulation solely for the history legislative The respondent. lated waste as quantities of hazardous such prohibition, as cited storage RCRA’s of proper recovery, necessary facilitate NRDC, equally is unillu- by HWTC storage us will disposal,” or proscrip repeats the minating; merely it regula penalized under not be RCRA. petitioners And 3004(j). evidentiary nothing; places of section no tion tion shifts provision in the statute it would not on the that identify no other burden under section procedural required to bear addresses much as even otherwise so 556(d). un proceedings in administrative burdens generally U.S.C. RCRA. See der sure, Administrator, has to be 1986) (governing (1982 IV Supp. & providing, companion regulations published The Adminis proceedings). enforcement storage prohibited respect 3004(j) to of section interpretation
trator’s
year,
one
than
periods greater
wastes for
procedural tradition
comport with
the burden
owner/operator
“the
bears
hardly be termed unreason
APA can
solely for
storage was
that such
proving
setting.
See Chevron U.S.A.
this
quan
able
purpose of accumulation
Coun
v. Natural Resources
necessary
treat
Inc.
as are
tities of
[for
Defense
2782,
2778,
cil,
268.50(c)(1988).
104 S.Ct.
But
467 U.S.
40 C.F.R. §
ment].”
(1984) (“if
is
the statute
ar
petitioners
way suggests,
L.Ed.2d
as
this
no
respect
has
ambiguous with
gue,
“reverse[d]
that the Administrator
[a]
silent
storage”
against
issue,
statutory presumption
for the court
question
specific
Rather, the
year or
of one
less.
periods
on
answer
based
agency’s
whether
(rea-
simply
has
determined
statute”). Administrator
construction
permissible
party
we
the court
either
regula-
respect
not cited
to its
provided, with
has
4. EPA
interpreta-
have the
complain-
therefore do
generally, tory programs
"[t]he
event,
any
regulation
us.
before
going
tion
this
forward with
has the burden of
ant
speak to the
infra,
does not
RCRA
as we note
forth
occurred
set
that the violation
proving
persuasion burdens
(1988)
production or
allocation
22.24
complaint_”
40 C.F.R.
the extent
proceedings. To
added).
regulation
read
administrative
can be
(emphasis
This
of the burden
allege
petitioners
a misallocation
persuasion
locating
burden of
as
agency
such,
reject
3004(j),
persuasion
under
any
proceedings
of the statutes
under
nevertheless,
as well.
administers;
passage was
contention
think)
producing
plan
sonably, we
evidence ment
to assure that wastes that are
*13
generator
prohibited prohibited
disposal
has stored
that a
from land
will not make
greater
year
period
ground.
wastes for a
than one
way
their
into the
Under the
556(d)
agency’s
scheme,
fulfills the
obli EPA’s
restricted wastes will fol-
gation
First,
to come forward
administrative
paths.
genera-
low one of
two
prima
a
proceedings with
case of
tor of the waste determines that he is
facie
storage.
the Administrator
unlawful
Once
managing a restricted waste and the waste
prima
showing,
a
makes such
applicable
does not meet
treatment
facie
course,
may permissibly
the burden
shift to
standards,
notify
he must
the treatment
generator
to demonstrate that such facility
appropriate
treatment stan-
lengthy storage
was in fact motivated
dards,
268.7(a)(1);
see 40 C.F.R.
the treat-
§
legitimate
under
considerations
RCRA.
facility
required, pursuant
ment
is then
Comp.
v.
See First Nat’l Bank
268.7(b),
40 C.F.R.
to test the treatment
§
of Bellaire
(5th
683
Currency, 697 F.2d
Cir.
waste,
residue to assure that
once
1983);
Fund,
treated,
Environmental
meets those standards
for-
before
Defense
Inc.,
1014-15;
548 F.2d at
Ben
Old
Coal warding
disposal
the waste to a land
facili-
Corp.,
8. Petitioners
that the EPA's claim that it
operators
treatment facilities and landfill
to use
require generator
testing on the
declined to
Appendix
"the test method
described
I of this
ground
“nothing
be redundant was
it would
268.7(b), 268.7(c)
part,”
(referring
§§
40 C.F.R.
post
more than
hoc rationalization of counsel
“Toxicity
Leaching
to the
dure")
Characteristic
Proce-
which is not contained in the administrative
petitioners
test that
have called “ex-
However,
Reply
at 10.
record.”
Brief
in the
—a
tremely stringent.” See Brief for Petitioners
proposed regulations
clearly expressed
the EPA
preference
genera-
HWTC and NRDC at 15. The focus of their
for a scheme under which
testing
absolutely required
challenge
apparently
allegedly
tor
would not be
for
ap-
limited to the
reason,
alia,
particular
testing.
inter
that this
inadequate frequency of
proach
require
testing_”
"does not
redundant
Fed.Reg. at
method,
testing requirement at
then
compliance with
purposes
For
rule,
disposal stage cannot be relied
a waste
the land
disposal restrictions
generators
fa-
have
upon to catch waste
plan for an off-site
analysis
naturally
procedures
erroneously
falling
certified as
cility
address
waste
incoming shipments of
standards.
screening
within these
received conform
that wastes
ensure
no desire to enter a meta-
While we have
genera-
made
to the certification
over the source and nature
physical debate
is, the
facility.
That
tor or
compels
knowledge, common sense
of all
plan must address
analysis
what
recognition of the fact that much of
determining
necessary for
procedures
practical
“knowledge”
think of
in the
or treat-
extract of the waste
whether
extrapolation
nothing more than
world is
the treatment standards.
meets
ed waste
experiences. As
a more limited set of
from
then,
sense,
40,598.10 In a
Fed.Reg. at
case,
say
present
relevant to the
we cannot
while
premature:
concerns
petitioners’
requires testing beyond
the statute
designed
assure
scheme
the EPA’s
necessary to assure with
practically
what is
case-by-
testing, which includes
adequate
prohibited
high degree
of confidence
frequency with
case determinations
being
disposed.
We
wastes are not
be con-
testing will need to
which actual
that the EPA’s
therefore hold
decision
an-
petitioners
shipments,
ducted on waste
rely
appropriate
cir-
allow
testing
the EPA will authorize
ticipate that
knowledge
*16
on their
of their
cumstances
prefer
inadequate.
that are
We
schedules
certify
naturally
to
that it
restricted waste
faithfully
agency
will
anticipate
to
meets
standards is reasonable.
the stat-
responsibilities under
its
execute
ute,
testing requirements
impose
and will
V. ConClusion
Congress’ pur-
guarantee
that will
diox-
that the solvents and
We conclude
imple-
enacting the statute are
poses in
capricious,
con-
arbitrary,
is not
or
ins rule
up
not live
agency
If the
does
mented.
any
respects
ar-
trary to RCRA
there will be time
expectation,
but remand the matter
gued by petitioners,
challenge.
petitioners’
opportunity for
clarify
its
for the EPA
reasons
base,
challenge of HWTC and
At its
preference
Final Rule in
adopting the
set of
undergirded by
peculiar
NRDC is
In order to
dis-
Proposed Rule.
avoid
brief,
assumptions.
epistemological
will
regulatory program, we
rupting EPA’s
argue that
appear to
petitioners
these
of our mandate for
withhold issuance
testing
frequent
of waste
more
much
may
either
during which the
days,
handling
ever al-
stage of its
every
ade-
publish
Final Rule or
an
withdraw any given batch
“know” whether
low us to
purpose.
of basis and
quate statement
“arbitrary”
(itself
arguably
an
of waste
Accordingly.
Judgment
treat-
line)
the EPA’s
conforms to
dividing
test-
Absent continuous
ment standards.
SILBERMAN,
Judge,
Circuit
argue,
generation, they
point of
ing at the
concurring in
concurring
part and
levels of
certify what
generators cannot
result:
con-
their
constituents
hazardous
per cu-
majority’s
I concur in all
not re-
tains;
operators
landfill
resolution
purported
ship-
opinion but
riam
each individual waste
quired
test
question concern-
“Step II”
Chevron
compliance with
ment for
of BDAT treatment
ing
“Toxicity
the reasonableness
stringent
Char-
by the
standards
application
construction
as a
testing
standards
Leaching Procedure”
acteristic
changes.”
Fed.
method
sition or treatment
preamble
facilities
went on to discuss
10. 40,598.
permits
infer-
passage
Reg.
This
disposal all
generation,
treatment and
where
to the need
onsite,
EPA is attuned
frequent
ence that the
noting
place
that "[l]ess
take
testing
relatively
frequent
when
require
more
are few-
testing may
appropriate
there
when
coming
facili-
a land
into
waste streams
combined
variable waste streams at
er and less
and variable.
facilities,
compo-
ty
numerous
are more
if the
but waste
tested
must be
“Step
is,
fact,
While CMA’s
I” chal- determining
(or
RCRA.
what
possible
feasible?)
lenge to EPA’s construction of RCRA sec-
under the circumstances.
3004(m) i.e.,
tion
whether
the statute
—
agreement
We are also in
signif-
over the
“clearly forecloses”
charted
icance that EPA must attach to actual or
agency, Maj. op.
361-62—was avail-
reasonably perceived “threats to human
judicial
able for final
review, I do not health and the environment” in the course
proper
believe it
for the court
to have
3004(m)’s
fleshing
meaning.
out section
Step
question
reached the
II
as to whether
notes,
majority
As the
EPA is not
the selection of BDAT treatment levels was
require
free
...
to treat
policy
“a
choice for the agency
reasonable
beyond
their waste
point
at which
to make.” Chevron U.S.A. Inc. v. Natural
there is no ‘threat’ to human health or
Council,
837, 845,
Res.
U.S.
Defense
Congress’s
environment. That
con-
2778, 2783,
(1984).
104 S.Ct.
I agree
majority’s
with the
demonstrates that
expla-
conclusion
EPA’s
in
Congress
nation
the Final Rule
“specific
woefully shy
did not have a
falls
in-
of this mark
technology-based
as a matter of
tention” that
administrative
treatment
law, leaving the
any
court without
employed
implementa-
standards not be
in
hint
whatsoever
3004(m),
theory
as to EPA’s
Chevron,
tion of
of the com-
see
467
patibility
845,
of the Final Rule
2783,
with
U.S. at
104 S.Ct. at
RCRA’s
and to that
purposes.
circumstances,
Under these
agree
extent I
res-
questions
further
of
statutory questions
olution of the
confront-
statutory
interpretation
presented
court,
ing the
at
belonging
least those
petition
CMA’s
appropriately
resolved
Step
Chevron,
II of
is an improper exercise
Step
under
II
My
of
reading
Chevron.
judicial
creativity.
statutory
the critical
language requiring
EPA to set treatment standards so that
In order to
majority
conclude—as the
“threats to human health and the environ- does—that the accommodation
compet
suggests
ment are minimized”
a threshold
ing
policies
RCRA
reflected in
agency’s
the
ambiguity
Congress
as to whether
intended
regulation
Congress
is “one that
agency,
insofar
technological-
sanctioned,”
as was
would have
United States v.
ly possible,
any
statistically Shimer,
eliminate
374, 383,
367
1554,
U.S.
81 S.Ct.
1560,
discernible risk to human health
(1961)
and the
left to
how the
can
logic
wonder
and the policies
statutory
(or
underlying any legislative choice”),
construction
an
deference to
cert.
denied,
913,
3148,
453 U.S.
101 S.Ct.
explanation
agency
an
how
iniative is
(1981);
L.Ed.2d 997
Lead Indus.
statute)
Ass’n v.
consistent with the
that nowhere
EPA,
1130,
(D.C.Cir.)(choice
647 F.2d
appears
majority’s
Final Rule. The
policy approaches
between two
must be
analysis, my opinion,
Step II
Chevron
1042,
explained),
denied,
cert.
449 U.S.
nothing
advisory opinion
than an
more
621,
(1980);
S.Ct.
It would of Columbia Circuit. District its Pro opposing political forces formidable 12, Argued May 1989. ap in the Rule, acquiesced simply posed 22, Sept. 1989. Decided forces, but was by those proach desired a statu as its own unwilling to offer 22, Sept. As Amended acqui justify its tory/policy rationale in effect In the Final escence. recognized, and subordinated
stated that it congressmen to, the senators
itself Proposed against EPA’s protested
who affirming the way any without
Rule legisla (or superiority policy)
legal acknowledge My colleagues position.
tors’ as a matter is intolerable
EPA’s behavior Corp. law, see Meredith
of administrative (D.C.Cir.1987) FCC, 872-73 809 F.2d
v. obliged to address
(holding FCC doctrine challenge to fairness
constitutional expres “non-legislative
notwithstanding congressional concern”
sions Congress); Sierra
question be reserved (D.C. Costle, 404-10 657 F.2d v.
Club parte ex
Cir.1981) EPA’s ex (holding that congressional leaders
changes with render infor did not officials
White House EPA set infirm procedurally since
mal rule independent rationale
forth its own selected), “rescue” nevertheless
rule supplying the predicament from which, if it had analysis
statutory/poliey EPA, have obviated adopted
been circum a remand. Under need for the court’s
stances, why know I do not empty gesture, other than
remand is judicial principles of conforms
one which only in policymaking
review
form.