Chemical Waste Management, Inc. v. United States Environmental Protection Agency

I. STATUTORY AND REGULATORY BACKGROUND

Subtitle C of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6921-6939b (1988), sets out a comprehensive regulatory system governing the treatment, storage, and disposal of hazardous wastes. Wastes are deemed hazardous in one of two ways: They possess one of the four hazardous characteristics identified by the EPA in 40 C.F.R. Part 261, Subpart C ("characteristic wastes"), see id. § 261.3(a)(2)(i) (1991), or have been found to be hazardous as a result of an EPA rulemaking. See id. Part 261, Subpart D ("listed wastes").

The four characteristics identified as hazardous are ignitability, corrosivity, reactivity, and extraction procedure ("EP") toxicity. The hazards presented by ignitable, corrosive, and reactive ("ICR") wastes are primarily, though not exclusively, the results of their physical properties. See 45 Fed.Reg. 33,066, 33,107-10 (1980). EP characteristic wastes contain toxic constituents. Id. at 33,107-12. These wastes remain hazardous until they cease to exhibit any of the characteristics identified in Subpart C. See 40 C.F.R. § 261.3(d)(1). Characteristic wastes comprise over fifty percent of all the hazardous wastes generated in the United States each year.

Although the EPA may list a waste if it possesses one of the four characteristics described above, in practice it will only list specific wastes that are either acutely hazardous or possess high levels of toxic constituents. See id.; 45 Fed.Reg. at 33,105-07. A listed waste loses its hazardous status only after a petition for its "delisting" is approved by the EPA in a notice-and-comment rulemaking. See 40 C.F.R. §§ 260.20, 260.22; Shell Oil Co. v. EPA, 950 F.2d 741, 749 (D.C.Cir.1991).

"Once a waste is listed or identified as hazardous, its subsequent management is regulated" under subtitle C of RCRA. American Petroleum Inst. v. EPA, 906 F.2d 729, 733 (D.C.Cir.1990) ("API "). The waste enters RCRA's "cradle-to-grave" regulatory system; and "the waste's treatment, storage, and disposal is usually regulated by permit." American Mining Congress v. EPA, 907 F.2d 1179, 1182 (D.C.Cir.1990) ("AMC II "); see also RCRA §§ 3001-3004, 42 U.S.C. §§ 6921-6924. The management of a hazardous waste continues "until such time as it ceases to pose a hazard to the public." Shell Oil, 950 F.2d at 754.

Because "certain classes of land disposal facilities are not capable of assuring long-term containment of certain hazardous wastes," RCRA § 1002(b)(7), 42 U.S.C. § 6901(b)(7), Congress amended subtitle C in 1984 to prohibit land disposal of many hazardous wastes. The Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221 (1984) ("1984 Amendments"), gave the EPA significant authority to regulate land disposal. The statute expressed a general policy preference that "reliance on land disposal should be minimized or eliminated." RCRA § 1002(b)(7), 42 U.S.C. § 6901(b)(7). A prohibition on disposal would apply unless the waste is treated so as to minimize the short-term and long-term threats to human health and the environment posed by toxic and hazardous constituents, RCRA § 3004(m), 42 U.S.C. § 6924(m), or unless the EPA finds that no migration of hazardous constituents from the facility will occur after disposal. Id. § 3004(g)(5), 42 U.S.C. § 6924(g)(5); see also Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 357 (D.C.Cir.1989), cert. denied, 498 U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990) ("HWTC III ").

The 1984 Amendments specifically required the EPA to follow a phased schedule to implement the land disposal ban. They forbade the land disposal of hazardous wastes containing solvents and dioxins after November 8, 1986. RCRA § 3004(e), 42 U.S.C. § 6924(e). A select list of other wastes were barred from land disposal after July 8, 1987 ("California list" wastes). Id. § 3004(d), 42 U.S.C. § 6924(d). Finally, the amendments ordered the Agency to rank all remaining hazardous wastes on the basis of their intrinsic hazard and the volume generated annually and to divide the list into three parts. Id. § 3004(g)(4), 42 U.S.C. § 6924(g)(4). The Administrator was then charged with the task of promulgating final regulations for each third of the list. See id. § 3004(g)(5), 42 U.S.C. § 6924(g)(5). Unless the Administrator promulgated regulations for wastes in the last third of the list by May 8, 1990, they could not be land disposed. Id. § 3004(g)(6)(C), 42 U.S.C. § 6924(g)(6)(C).

Under the 1984 Amendments, the final regulations must

prohibit[ ] one or more methods of land disposal of the hazardous wastes listed on such schedule except for methods of land disposal which the Administrator determines will be protective of human health and the environment for as long as the waste remains hazardous.... For the purposes of this paragraph, a method of land disposal may not be determined to be protective of human health and the environment (except with respect to a hazardous waste which has complied with the pretreatment regulations promulgated under subsection (m) of this section) unless, upon application by an interested person, it has been demonstrated to the Administrator, to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous.

RCRA § 3004(g)(5), 42 U.S.C. § 6924(g)(5). The Administrator must also promulgate treatment standards, compliance with which will authorize land disposal, at the same time he publishes the land ban. The treatment regulations shall

specify[ ] those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.

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

The regulations under review implement the land-ban program for the last third of the ranked list of wastes, the "third-third." They largely consist of treatment standards for characteristic wastes. See 55 Fed.Reg. 22,520-720 (1990). The final rule also modifies regulations governing characteristic wastes that are managed in treatment systems regulated through National Pollutant Discharge Elimination System permits issued under the Clean Water Act as well as regulations affecting those disposed of in underground injection wells regulated under the Safe Drinking Water Act. The rule establishes a variety of compliance requirements as well.

Fourteen petitions for review were filed and consolidated into this proceeding. Petitioners divided the case into three groups of issues for purposes of briefing and argument. The first focuses on industry petitioners' challenge to standards mandating treatment of characteristic wastes beyond the point at which they cease to display hazardous characteristics and on NRDC petitioners' challenge to dilution as a method of treatment. The second centers on the Clean Water Act and underground injection well questions. The third consists of the remaining issues. This opinion adopts the same approach.

II. TREATMENT STANDARDS FOR CHARACTERISTIC WASTES

A. Proposed Rule

As described above, at the outset of the RCRA program, the EPA identified four characteristics as hazardous: ignitability, corrosivity, reactivity, and EP toxicity. In its proposed rules, and in the final regulations, the Agency divided characteristic wastes into subcategories, suggesting treatment standards or levels for each subcategory. For some of these, the EPA proposed treatment to reduce the presence of the characteristic below the level at which the waste was defined as hazardous. For example, a waste is considered corrosive, and therefore hazardous, if it is aqueous and has a pH of less than two or greater than 12.5. The proposed rule required treatment that would result in a pH between six and nine. See 54 Fed.Reg. 48,372, 48,422 (1989). For other subcategories, however, the EPA suggested treatment to the characteristic level and no further. See id. at 48,420-26 (setting treatment levels and standards).

The Agency stated that it possessed the authority to compel treatment below characteristic levels. See 54 Fed.Reg. at 48,419. It took note of the argument that the characteristic levels represent the limit of subtitle C authority--that the Agency had no power to regulate a waste where the characteristic had been brought below the level deemed hazardous. Id. at 48,490. The Agency believed, however, that section 3004(m) extended its authority beyond that point. "[O]nce wastes become subject to section 3004(m), they remain subject to the requirements of that section until the section 3004(m) standard is satisfied." Id. The EPA concluded that it was directed by the statute to require a waste that is hazardous at the point of generation and is destined for land disposal to "be treated by methods which substantially reduce toxicity and minimize threats to human health and the environment." Id.

As to methods of treatment, the proposed rule largely followed the judgment made by the EPA in previous land-ban program rulemakings. In those earlier rules, the EPA determined that treatment would be accomplished through the use of "best demonstrated available technologies." See, e.g., 51 Fed.Reg. 40,572, 40,578 (1986) (solvents and dioxins); 53 Fed.Reg. 31,138, 31,142 (1988) (first-third wastes). The proposed rule specified the particular technology to be used in the treatment of most ICR wastes. See 54 Fed.Reg. at 48,420-26. For a handful of others, the Agency offered a measure of flexibility by creating a "deactivation" category of treatment. According to the proposal, the EPA had "determined that within [several ICR subcategories] there appear to be a further variety of different waste groups, each with a certain degree of uniqueness with respect to hazard and handling requirements." Id. at 48,419. Therefore, while the Agency recommended a number of methods, it proposed to allow generators or treaters of those wastes to select the appropriate method of treatment. Id. at 48,419-20.

In implementing the land-ban program for solvents and wastes containing dioxins, the EPA barred dilution as an alternative for "adequate treatment." See 51 Fed.Reg. at 40,639. As codified, the rule stated that

no generator, transporter, handler, or owner or operator of a treatment, storage, or disposal facility shall in any way dilute a restricted waste ... as a substitute for adequate treatment to achieve compliance with subpart D of this part [setting forth treatment standards], ... or to circumvent a land disposal prohibition imposed by RCRA section 3004.

40

C.F.R. § 268.3(a) (1989)

At several points in the proposed third-third rule, the EPA reaffirmed its decision that a generator or treater might not dilute wastes to escape the dictates of the land disposal program. In its discussion of ignitable wastes, the Agency stated that "a prohibited form of dilution that is used to remove a characteristic from a prohibited hazardous waste would be a violation of the dilution prohibition in [40 C.F.R.] section 268.3." 54 Fed.Reg. at 48,422. Among the EPA's concerns was the possibility that dilution of ignitable wastes would lead to dangerous emissions of volatile organic compounds, a problem that could be avoided by using other treatment methods. Id. "Accordingly, the Agency believes that dilution should not be a legitimate method for treating ignitable wastes." Id.

The EPA proposed a similar bar with regard to reactive wastes: "[D]ilution of reactive wastes should not automatically be considered to be a legitimate form of treatment." Id. at 48,426. It proposed that reactive cyanides and sulfides be treated like any toxic waste; "[w]ith respect to other reactive wastes, most cannot be diluted without violent reaction so that dilution is not a viable management alternative[.]" Id.

Finally, the EPA suggested that corrosives be treated by neutralization, not dilution, to alter their pH. Id. at 48,422-23. According to the Agency, dilution would require the use of large amounts of water and would create a greater volume of waste; moreover, dilution "does not treat or remove hazardous constituents in the wastes." Id. at 48,423.

More broadly, the EPA expressed its

concern, echoing Congress' concern in indicating that dilution to avoid proper treatment was impermissible, [ ] that individual prohibited wastes [hazardous wastes destined for land disposal] not be mixed with larger volumes of other wastes (whether prohibited or not) to meet treatment standards without undergoing treatment that substantially reduces the prohibited wastes' toxicity or mobility....

Consequently, it appears to the Agency that any dilution that fails to meet the standard in § 3004(m) of substantially reducing the prohibited waste's toxicity or mobility is impermissible.... Further, with respect to organic constituents, 'reduction of toxicity' means actual removal of or chemical change to the constituent.

Id. at 48,494 (citation omitted). But the Agency did seek comments on "whether dilution can be used as a means of supplanting a section 3004(m) treatment standard by being used to render a prohibited waste non-hazardous in lieu of actually treating the prohibited hazardous waste prior to land disposal." Id. at 48,495.

B. Final Rule

In the final rule, the EPA revised many of its proposed treatment standards for ICR and toxic characteristic wastes. The EPA, however, did not back away from its basic position that it could require treatment below characteristic levels. Because "Congress has given apparently conflicting guidance on how the Agency should address land disposal prohibitions for characteristic wastes," the EPA "believes it has authority to reconcile these potential conflicts and to harmonize statutory provisions to forge a coherent regulatory system." 55 Fed.Reg. at 22,651. The EPA agreed with many participants in the comment period that "one permissible construction of the language in section 3004(g)" (which requires the promulgation of regulations "prohibiting ... methods of land disposal of the [listed] hazardous wastes") is that subtitle C rules applied only to hazardous wastes, and therefore the applicability of the land disposal regulations must be judged at the moment of disposal. 55 Fed.Reg. at 22,652. Ultimately, the EPA concluded that Congress did not state when the status of the waste should be evaluated for purposes of the ban on land disposal; therefore, the EPA could choose to regulate the waste "at the point of generation or at the point of disposal (and possibly at some other point or combination of the two)." Id.

While viewing its authority broadly, the EPA decided to exercise it sparingly:

Today's rule reflects a decision to take limited, but nonetheless significant, steps within the point of generation framework. As a general matter, the Agency believes that the goals of [the program] may require application of standards which go beyond the characteristic level ... in some future cases.

Id. at 22,654. The final regulations call for treatment below characteristic levels for only a handful of wastes. Among ICR wastes, ignitable liquids with high total organic carbons (a subset of the subcategory of ignitable liquids for which the proposed rule required treatment to below characteristic levels by technology), see id. at 22,543-44, and reactive cyanides, see id. at 22,550-51, would be subject to enhanced treatment. The Agency backed away from its original plan to mandate enhanced treatment for corrosive characteristic wastes.

The EPA determined that for most ICR wastes, treatment to characteristic levels would be sufficient. The Agency found upon review that

[t]he environmental concerns from the properties of ignitability, corrosivity, and reactivity are different from the environmental concern from EP toxic wastes. Toxic constituents can pose a cumulative impact on land disposal even where waste is below the characteristic level. Where wastes pose an ascertainable toxicity concern ... the Agency has developed treatment standards that address the toxicity concern and (in effect) require treatment below the characteristic level.... Otherwise, treatment that removes the properties of ignitability, corrosivity, and reactivity, fully addresses the environmental concern from the properties themselves.

Id. at 22,655.

The EPA also retreated from its emphasis on technology-based treatment in the final regulations, altering its position on the use of dilution as a method of treatment:

In all cases, the Agency has determined that for non-toxic hazardous characteristic wastes, it should not matter how the characteristic property is removed so long as it is removed. Thus, dilution is an acceptable treatment method for such wastes.

Id. at 22,532. The Agency included dilution within the ambit of the "deactivation" treatment standard. The final rule defined the standard as "[d]eactivation to remove the hazardous characteristics of a waste due to its ignitability, corrosivity, and/or reactivity." Id. at 22,693. As long as these characteristics are removed, any method can be employed under the final regulations. The EPA allowed full discretion among specified technological methods of treatment (such as neutralization or incineration) as well as dilution with water or other wastes. For toxic wastes, the prohibition on dilution remained. See id. at 22,656.

The Agency admitted that it

believes the mixing of waste streams to eliminate certain characteristic[s] is appropriate treatment for most wastes which are purely corrosive, or in some cases, reactive or ignitable. As a general matter, these are properties which can effectively be removed by mixing.

Id. (emphasis added). It further conceded that

this approach does not fully address the potential problem of toxic constituents that may be present in such wastes, nor encourages minimization or recovery of non-toxic characteristic hazardous wastes. EPA has determined that these potential problems should be addressed, if at all, in other rulemakings ... and are too difficult to resolve in this proceeding, given the extraordinary pressures and limited review time imposed by the May 8 [1990] statutory deadline.

Id. at 22,665-66. Only in three subcategories of ICR wastes did the EPA mandate the use of technological treatment: reactive sulfides, 57 Fed.Reg. 8,086, 8,089 (1992) (technical correction to third-third rule); reactive cyanides, 55 Fed.Reg. at 22,551; and ignitable liquid nonwastewater wastes containing more than ten percent total organic compounds, id. at 22,544. For all corrosive wastes, other ignitable liquid wastes (nonwastewaters with low total organic compounds and ignitable wastewaters), ignitable compressed gases, ignitable reactive wastes, explosive wastes, water reactives, and other reactives dilution would be acceptable. Id. at 22,543-53.

C. Standard of Review

Industry and NRDC petitioners challenge the third-third rule's treatment standards as incompatible with RCRA. We typically analyze such claims under the familiar standard of Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, unless Congress has spoken directly to these questions, the EPA's determinations are entitled to deference, if reasonable. Id. at 842-43, 104 S.Ct. at 2781-82.

D. Industry Petitioners' Challenge to the Treatment Standards

Industry petitioners contend that RCRA does not provide authority for the EPA to mandate treatment of characteristic wastes after their ignitability, corrosiveness, reactivity, or EP toxicity has been addressed. They make a straightforward argument: Subtitle C regulations attach to a waste only when it is hazardous. The moment a waste ceases to meet the regulatory definition of a hazardous waste, the EPA loses its authority to regulate further. Thus, in industry petitioners' view, RCRA's cradle-to-grave system covers waste only if it remains hazardous throughout its life and at the moment of its burial.

Industry petitioners point to a welter of provisions in RCRA where the words "hazardous waste" are used as proof that the statute applies only to waste defined as hazardous. Subtitle C, they explain, is entitled "Hazardous Waste Management," and the entire subtitle addresses that problem--the management of hazardous waste. They add that some statements by the EPA have suggested the same reading of the statute. See, e.g., 54 Fed.Reg. 1,056, 1,093 (1989) (a waste that no longer exhibits a hazardous characteristic "is no longer subject to the requirements of Subtitle C of RCRA").

In their view, the 1984 Amendments did not change this boundary. They point out that land disposal is defined in part as "any placement of such hazardous waste in a landfill, [or] surface impoundment," RCRA § 3004(k), 42 U.S.C. § 6924(k); that section 3004(g) similarly "prohibit[s] one or more methods of land disposal of [ ] hazardous wastes," id. § 6924(g)(5); and, finally, that section 3004(m) authorizes land disposal of hazardous waste that has been treated, suggesting to industry petitioners that the provision specifically authorizes only the disposal of wastes that remain hazardous after treatment. Thus, they conclude, the disposal restrictions can apply only to wastes that are hazardous at the moment of disposal.

In its brief, the EPA reiterates the rationales stated in its final rule: The key provisions of the land-ban program, sections 3004(g)(5) and (m), can be read as allowing the Agency to apply land disposal restrictions at any time it wishes; those provisions at a minimum contemplate activity that occurs before land disposal; section 3004(m)(1) requires treatment to avoid the prohibition on land disposal; and treatment must take place, by definition, before disposal occurs. This reading, the EPA adds, dovetails with the concern expressed in the report accompanying the Senate version of the 1984 Amendments, that hazardous waste not be diluted and then disposed of in landfills. See S.Rep. No. 284, 98th Cong., 1st Sess. 17 (1983) ("Senate Report"). The Agency reasons that the subtitle C program can attach at the point of generation, and the broad language of section 3004(m)(1) allows additional treatment to remove risks posed by wastes beyond those inherent in the characteristic.

To succeed in their Chevron step one argument, industry petitioners must show that Congress "has directly spoken to the precise question at issue" and has "unambiguously expressed [its] intent." 467 U.S. at 842-43, 104 S.Ct. at 2781-82.3 We find little support in the statute or our prior decisions for the notion that Congress mandated the line industry petitioners draw. These petitioners believe that the definition of a hazardous waste acts as a revolving regulatory door, allowing continual entrance and egress from RCRA's requirements. The key provisions of the statute support a contrary view--that hazardous waste becomes subject to the land disposal program as soon as it is generated.

RCRA directs the Administrator to "promulgate regulations identifying the characteristics of hazardous waste ... which shall be subject to the provisions of this subchapter." RCRA § 3001(b)(1), 42 U.S.C. § 6921(b)(1). This appears to bring a waste within the statutory scheme once it is identified as hazardous. Under the dictates of the 1984 Amendments, the Administrator "shall promulgate regulations ... [banning land disposal for] any hazardous waste identified or listed under section 6921 of this title." RCRA § 3004(g)(4), 42 U.S.C. § 6924(g)(4). Again, the focus is on the identification of a waste as hazardous.

This reading of the statute is consistent with our prior interpretations. In API, we explained that "[o]nce a waste is listed or identified as hazardous, its subsequent management is regulated." API, 906 F.2d at 733. After the 1984 Amendments, we added, regulation of the waste included the prohibitions of section 3004. Id. In Shell Oil, we noted that the power to manage waste is created "[a]t [the] point" a waste is defined as hazardous and discarded. Shell Oil, 950 F.2d at 754. Once in the system, we found that the power to manage hazardous waste provided by RCRA gave the EPA the authority to regulate waste until "it ceases to pose a hazard to the public." Id.; see also RCRA § 1004(7), 42 U.S.C. § 6903(7) (defining "hazardous waste management"). We therefore deferred to the EPA's determination that resource recovery from hazardous waste came within the Agency's subtitle C authority.

Industry petitioners nevertheless contend that we adopted the exact position they now advocate in American Mining Congress v. EPA, 824 F.2d 1177 (D.C.Cir.1987) ("AMC I "). To be sure, in AMC I, we stated that the EPA's authority, in the first instance, extends only to waste that is identified as hazardous, id. at 1179, and that Congress took care in drafting the definition of solid waste to reflect its concern over the reach of the EPA's authority, id. at 1188-89 and n. 17. But, as we emphasized in Shell Oil, the definitions of solid and hazardous wastes provide the keys to entrance into the RCRA system; "[o]nly materials that meet both definitions will come within the [RCRA] 'cradle-to-grave' regulatory scheme," Shell Oil, 950 F.2d at 754 (emphasis added); and we also stated that once within the system, the waste will remain there so long as it poses a threat to the public health and safety. Id. AMC I turned on the question of whether secondary materials immediately reused within an industrial process had been "discarded" under the terms of RCRA. We concluded that they had not. AMC I, 824 F.2d at 1185-87. Our decision in that case stands for no more. See Shell Oil, 950 F.2d at 755-56.

The 1984 Amendments also provide the EPA with the authority to mandate treatment past the point at which a characteristic is removed. Section 3004(g)(5) requires the Administrator to promulgate regulations prohibiting land disposal of hazardous wastes "except with respect to a hazardous waste which has complied with the pretreatment regulations promulgated under subsection (m) of this section." 42 U.S.C. § 6924(g)(5). Subsection (m)(1), in turn, calls on the Administrator to

specify[ ] those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.

RCRA § 3004(m)(1), 42 U.S.C. § 6924(m)(1). The requirement that treatment "substantially diminish the toxicity" or substantially reduce the likelihood of migration of hazardous constituents suggests concerns that go beyond the characteristics identified in 40 C.F.R. Part 261, subpart C. Similarly, in concluding that the EPA had the authority to require technologies that go beyond the elimination of hazardous characteristics, we have noted that "minimize" offers a broad mandate: "To 'minimize' something is, to quote the Oxford English Dictionary, to 'reduce [it] to the smallest possible amount, extent, or degree.' " HWTC III, 886 F.2d at 361.

In HWTC III, the Chemical Manufacturer's Association ("C