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HURON ENVTL. ACTIVIST LEAGUE v. UNITED STATES EPA

February 27, 1996

HURON ENVIRONMENTAL ACTIVIST LEAGUE; SAFE CEMENT ALLIANCE OF TEXAS; DESERT CITIZENS AGAINST POLLUTION; ADANS FOR A CLEAN ENVIRONMENT; SIERRA CLUB; and ENVIRONMENTAL TECHNOLOGY COUNCIL, Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court in the above-captioned case are two sets of pleadings. The first concerns whether two industry groups -- the American Portland Cement Alliance ("APCA") and the Cement Kiln Recycling Coalition ("CKRC") -- which have been involved in a series of meetings with the defendant concerning the regulation of Cement Kiln Dust ("CKD") under the Resource Conservation and Recovery Act ("RCRA") are entitled to intervene. In response to the movants' Motion to Intervene, the plaintiffs filed an Opposition; the movants subsequently filed a Reply thereto. The second set consists of cross motions for summary judgment filed by the parties and the movants, oppositions thereto, and replies. Upon consideration of the entire record herein and the applicable law, the Court shall grant the movant's Motion to Intervene and the defendant's Motion for Summary Judgment.

 BACKGROUND1

 Cement Kiln Product is a by-product of the manufacturing process for cement, which consists of gypsum and cement "clinker" crushed together. Cement "clinker" is produced by feeding a mixture of pulverized limestone, shale and other earthen materials into a cement kiln. In the kiln, most of the material becomes "clinker" product. However, some of the mixture is carried out of the kiln with exhaust gases. This material constitutes CKD; air pollution control devices aim to capture it.

 In 1980, Congress included CKD waste along with other types of materials derived from mined earthen materials in a unique RCRA category. The so-called "Bevill Amendment" to RCRA, located at 42 U.S.C. § 6921(b) (3) and 6982(o), established a regulatory process that EPA must undertake regarding such waste. See Horsehead Resource Development Co., Inc. v. Browner, 305 U.S. App. D.C. 35, 16 F.3d 1246, 1254 (D.C. Cir. 1994) (reviewing development of the Bevill Amendment).

 The Bevill process prohibits EPA from issuing regulations for "high volume, low toxicity" wastes such as CKD under RCRA's "Subtitle C" hazardous waste regime unless EPA considers numerous factors, such as the nature of the risks associated therewith, the economic impact of any such regulation, and alternatives to regulation under Subtitle C. 42 U.S.C. §§ 6921(b) (3) (A), 6982(o). The initial step in the Bevill process requires EPA to issue a Report to Congress. Id. at § 6982(o). After the consideration of public comments regarding the Report, EPA then publishes a "determination" in the Federal Register, accompanied by an "explanation and justification" regarding its decision whether to further regulate a particular waste. Id. at § 6921(b) (3) (C). EPA issued a report regarding CKD on December 31, 1993. 59 Fed. Reg. 709 (1994).

 As EPA considered the record for its CKD determination, the movants urged it to determine that no further RCRA controls are warranted; the plaintiffs urged the EPA to arrive at a contrary decision. Although the plaintiffs' position ultimately prevailed, EPA did not, as the plaintiffs had urged, distinguish CKD produced by kilns that burn hazardous waste fuel ("HWF") from that produced by kilns that use other fuels. *fn2" Notwithstanding the plaintiffs' urging that EPA impose immediate and full RCRA hazardous waste regulation on kilns that burn HWF (while leaving all other cement kilns alone), EPA found no significant difference in the risks presented in comparing CKD from kilns that burn HWF with those that do not. Id. at 7369. EPA also noted that the CKD from kilns that burn HWF is already subject to full regulation as a RCRA hazardous waste if it fails testing requirements set forth in EPA's regulations. Id.3

 Together with its determination that "additional control of [CKD] is warranted in order to protect the public from human health risks and to prevent environmental damage resulting from current disposal of this waste. . .", 60 Fed. Reg. 7366, EPA announced its intention to conduct a series of meetings with "interested parties, including industry, government, and public interest groups [in order] to solicit information and approaches that will facilitate the Agency's analysis of regulatory options. . ." 60 Fed. Reg. 7376. *fn4" Thereafter followed a series of meetings with various industry and public interest groups.

 EPA conducted a briefing with regards to its regulatory determination on February 2, 1995. Thereafter, one or two members of APCA indicated to EPA that they were considering whether to submit a proposal for an enforceable agreement between EPA and APCA regarding CKD waste.

 On March 8, 1995, EPA met with the Association for Responsible Thermal Treatment ("ARTT"), a trade association representing incinerator companies. Representatives of ARTT expressed their view that CKD waste should be listed as a hazardous waste under RCRA Subtitle C.

 On March 22, 1995, EPA met with APCA and CKRC whereupon the two trade associations proposed that, in lieu of issuing formal regulations, EPA enter into an enforceable agreement with cement manufacturers that would impose technical requirements for the management and disposal of CKD waste. A draft agreement was submitted to the defendant. See Enforceable Agreement for Management of Cement Kiln Dust Waste, attached to Complaint as Exhibit A. EPA attendees agreed to review the industry proposal and respond at a later date.

 EPA met again with APCA and CKRC on April 6, 1995, and presented them with a preliminary list of technical questions and issues identified by EPA in response to the industry's proposal. See Preliminary Questions and Issues: Cement Industry's Proposed Enforceable Agreement, attached to Complaint as Exhibit C. EPA informed APCA representatives that it would actively consider the proposed agreement, but that there were technical, legal, and enforcement issues that needed to be addressed. EPA also informed APCA representatives that Agency rulemaking activities would be suspended pending consideration of the proposed agreement and that it would present the proposed agreement to other interested parties for comment.

 Then followed a series of meetings in quick succession regarding CKD waste. On April 19, 1995, EPA met with two hazardous waste management industry organizations; a week later, EPA met with a group of state regulatory authorities; on May 2, 1995, EPA met with plaintiff Environmental Technology Council ("ETC"); and on May 9, 1995, EPA met again with ARTT. On June 2, 1995, EPA again met with APCA, which represented CKRC at this and future meetings, to discuss EPA's prior list of technical questions and issues concerning the proposed enforceable agreement. Responding to those concerns, APCA presented EPA with a revised section of the draft enforceable agreement concerning CKD management practices, and a new section allowing for public participation in implementing and enforcing the agreement. EPA forwarded copies of these sections to interested local citizen groups.

 On August 13, 1995, APCA submitted to EPA a second revision of the CKD management practices of its proposed enforceable agreement. EPA then met with APCA on August 22, 1995, to discuss technical issues identified by EPA and other interested parties. At that meeting, EPA identified technical issues regarding the proposed enforceable agreement and draft CKD management practices; EPA also discussed the status of its consideration of legal and enforcement issues. EPA and APCA agreed to set up another meeting to discuss the engineering characteristics of CKD.

 On that same date, EPA also sent a letter to interested public interest groups, including plaintiffs HEAL and Adans, inviting them to a meeting on September 12, 1995, and enclosing a copy of the industry's second revision to the CKD management practices section. See August 22, 1995 letter from William Schoenborn, Waste Management Division, EPA, to Public Interest Group Representatives, attached to Complaint as Exhibit D. EPA stated in the letter that it "would particularly like to receive written alternative proposals for language and conditions for the enforceable agreement document," and requested that such proposals be submitted by the September 12 meeting "so [EPA could] discuss them with [the representatives of the various publis interest groups]." In response, EPA received comments and proposals for technical standards from the public interest groups.

 Plaintiffs HEAL and Adans were among the groups which attended the September 12 meeting. They presented to EPA an alternative proposal for public participation in the enforceable agreement, which EPA forwarded to the other interested parties for comment.

 On September 19, 1995, plaintiff ETC contacted EPA staff to inquire about the availability of documents related to the proposed CKD enforceable agreement. ETC was informed that documents were available for review in the public docket, but that the docket needed to be updated. EPA staff subsequently added to the docket meeting notes, press releases, ...


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