CHAPTER 3 SIGNIFICANT RCRA JUDICIAL AND ADMINISTRATIVE DECISIONS

JurisdictionUnited States
RCRA and CERCLA
(Apr 1997)

CHAPTER 3
SIGNIFICANT RCRA JUDICIAL AND ADMINISTRATIVE DECISIONS


Charlotte L. Neitzel
Holme Roberts & Owen LLP
Denver, Colorado

TABLE OF CONTENTS

SYNOPSIS

Page

I. Introduction

II. Judicial Challenges of EPA Regulations

A. Introduction

B. Litigation Concerning Mineral Processing Wastes

1. Processing Wastes Inside and Outside the Bevill Amendment
2. Listing of Smelter Wastes

C. Challenges to the Toxicity Characteristic Leaching Procedure ("TCLP")

D. Applicability of Corrective Action to Bevill Waste

E. Challenges to EPA Rulemakings Regarding Other Bevill Wastes

F. Recent Cases Reviewing Other Significant RCRA Rulemakings

III. RCRA Citizen Suits

A. Introduction

B. Meghrig and the Preclusion of Compensation for Costs Incurred

C. Citizen Suits Directed at Mining Companies

D. Other Cases Addressing the Abstention Doctrine or Deferral Resulting from Ongoing Administrative Regulation or Enforcement

E. What is an Imminent and Substantial Endangerment?

F. The Applicability of RCRA Citizen Suits to States

G. Statute of Limitations Applicable to RCRA Citizen Suits

H. Attorneys' Fees

I. Notice and Delay Issues

J. Standing, Solid Waste and Open Dumping Issues

IV. Miscellaneous RCRA Issues

A. Marine Shale Cases

B. State Attempts to Reduce the Out-of-State Entry of Hazardous Wastes

C. Environmental Appeals Board Cases

V. Conclusion

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I. Introduction

The Resource Conservation and Recovery Act ("RCRA")1 imposes complex and expensive requirements on facilities that generate, treat, store and dispose of hazardous waste. The mining and oil and gas industries have devoted substantial resources in working with Congress and the Environmental Protection Agency ("EPA") and in challenging EPA rulemakings so that a regulatory scheme could be developed for these industries that is practical, as well as protective of human health and the environment.

Section I of this paper summarizes significant decisions that have reviewed EPA rulemakings relating to the extractive resources industries, and how those decisions relate to rulemakings that are being proposed this year. It also discusses recent decisions challenging rulemakings impacting other industries to evaluate the factors that courts are currently using to support or strike down aspects of EPA rulemakings.

RCRA also contains a citizen suit provision2 that environmentalists have used to attempt to force mining and other industries to clean up their properties. Section II of this paper compares the RCRA citizen suit to private party actions under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), focusing on why plaintiffs may elect to file a RCRA citizen suit over a CERCLA action. It further summarizes some recent RCRA citizen suit cases to provide insight into the myriad issues being litigated under this RCRA provision.

Finally, Section III of this paper focuses on miscellaneous RCRA decisions that may be of interest to those companies generating characteristic non-Bevill processing wastes that are currently subject to Subtitle C of RCRA.

II. Judicial Challenges of EPA Regulations

A. Introduction

The RCRA provisions having the greatest impact on the extractive resource industries are sections 3001(b)(3) and 8002(f), (m) and (p).3 These provisions required EPA to conduct detailed studies on the adverse effects of "drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy on human health and the environment," of solid wastes from active and abandoned surface and underground mines on the environment, and of solid waste from the

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extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from uranium mining. The provisions also excluded those wastes from regulation under Subtitle C of RCRA until at least six months after the date of submission of the study. Within the six-month period, EPA was required to determine whether or not the Subtitle C hazardous waste regulations should apply to those wastes. The exclusion for oil and gas wastes has become known as the Bentsen Amendment and the exclusion for extraction, beneficiation and processing wastes has become known as the Bevill Amendment.4 If EPA decides to regulate such wastes, section 3004(x)5 also allows EPA to modify certain standards for landfill and surface impoundment treatment, storage, and disposal ("TSD") facilities that receive solid waste from the extraction, beneficiation or processing of ores or minerals "to take into account the special characteristics of such wastes, the practical difficulties associated with implementation of such requirements, and site-specific characteristics, including, but not limited to, the climate, geology, hydrology and soil chemistry at the site, so long as such modified requirements assure protection of human health and the environment."

On July 6, 1988, EPA determined not to regulate oil and gas wastes as hazardous wastes,6 which was upheld after challenge in Alaska Center for the Environment v. Reilly.7

On December 31, 1985, EPA published its Report to Congress under sections 8002(f) and (p) regarding wastes from the extraction and beneficiation of metallic ores, phosphate rock, asbestos, and overburden from uranium mining and oil shale. On July 3, 1986, it determined that Subtitle C regulation was not appropriate or warranted for these wastes.8 That determination was upheld in Environmental Defense Fund v. United States EPA.9

B. Litigation Concerning Mineral Processing Wastes
1. Processing Wastes Inside and Outside the Bevill Amendment

Much of the subsequent litigation under RCRA regarding the resource extractive industry has revolved around EPA's attempts to regulate mineral processing wastes. In

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Environmental Defense Fund v. EPA,10 the D.C. Circuit Court found, in reviewing the legislative history of the Bevill Amendment, that Congress intended wastes from "processing" of ores or minerals to cover only "high volume, low hazard" wastes and ordered EPA to determine which processing wastes remained within the Bevill exclusion as high volume, low hazard wastes.

EPA issued two rulemakings in response to that order. In September 1989,11 EPA established separate high volume criteria for liquid and non-liquid wastes. Using a specified methodology, EPA produced a final high volume criteria of 45,000 mt/yr per facility for non-liquid wastes and one million mt/yr per facility for liquid wastes. The low hazard determination established a maximum level of mobility and toxicity for both liquid and non-liquid wastes, and a range of pH corrosivity, applicable only to liquid wastes. The final toxicity/mobility standard, which employed EPA's newly developed Method 1312, excluded from Bevill coverage any waste containing hazardous constituents at a level greater than 100 times the maximum contaminant level in EPA's primary drinking water standards. The final corrosivity test placed outside Bevill coverage any waste with a pH of less than one or greater than 13.5. Under these criteria, EPA retained five wastes within the Bevill Amendment, ruled eighteen outside its scope, and conditionally retained twenty, pending further study. In January 1990, EPA determined to finalize Bevill status for fifteen wastes and to remove five from Bevill coverage.12 EPA therefore retained twenty total processing wastes within the Bevill Amendment.

In Solite Corp. v. United States EPA,13 the Court used the now familiar test in Chevron, "whether the agency's answer is based on a permissible construction of the statute," in reviewing these two rulemakings, and upheld EPA's high volume and low hazard criteria. It also upheld other aspects of EPA's rulemaking. For example, EPA had decided to apply the Bevill Amendment only to wastes from mineral processing operations with feedstocks containing less than 50 percent scrap materials; for this purpose, in-process materials, which are derived from prior mineral processing operations, were counted as scrap, regardless of their mineral content. Industry argued that the 50 percent rule discouraged recycling. The Court rejected that argument, holding that "EPA must distinguish somehow between primary mineral processing operations, which qualify as Bevill mineral processing, and secondary processing operations, which do not," and the 50 percent rule "supplies a reasonable line of demarcation."14

The Agency, however, was not entirely successful in this rulemaking. It fell short in not articulating a reasonable justification for categorizing wastes from DuPont's chloride-ilmenite process as mineral processing wastes excluded from the Bevill Amendment, rather than

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beneficiation wastes, and remanded this issue to EPA.15 It also directed the Agency to reconsider whether Lightweight Aggregate Air Pollution Control Dust/Sludge satisfied the high volume criteria, finding that EPA had failed to provide adequate notice and opportunity for comment on new data and calculations made to conclude that it had not met the criteria.16 On January 25, 1996, EPA again proposed that both of these wastes continue to be classified as mineral processing wastes no longer eligible for the Bevill exclusion.17

2. Listing of Smelter Wastes

In 1988, EPA listed the following smelter wastes as hazardous wastes:18

K064- Acid plant blowdown slurry/sludge resulting from the thickening of blowdown slurry from primary copper production.

K065- Surface impoundment solids contained in and dredged from surface impoundments at primary lead smelting facilities.

K066- Sludge from treatment of process wastewater and/or acid plant blowdown from primary zinc production.

K088- Spent potliners from primary aluminum reduction.

K090- Emission control dust or sludge from...

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