Hazardous Waste Treatment Council v. U.S. E.P.A., s. 86-1658

• Decision Date: 07 October 1988
• Docket Number: 87-1082 and 87-1092,Nos. 86-1658,s. 86-1658
• Citation: 861 F.2d 270
• Parties: , 274 U.S.App.D.C. 37, 57 USLW 2263, 19 Envtl. L. Rep. 20,059 HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, Association of Petroleum Re-Refiners, Petitioner, and Natural Resources Defense Council, Inc., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, Edison Electric Institute, et al., Intervenors .
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 270

861 F.2d 270

28 ERC 1305, 274 U.S.App.D.C. 37, 57

USLW 2263,

19 Envtl. L. Rep. 20,059

HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner Association of Petroleum Re-Refiners, Petitioner and Natural Resources Defense Council, Inc., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents Edison Electric Institute, et al., Intervenors [HWTC I].

Nos. 86-1658, 87-1082 and 87-1092.

United States Court of Appeals District of Columbia Circuit.

Argued March 7, 1988.

Decided Oct. 7, 1988.

David R. Case, Washington, D.C., and Jacqueline M. Warren, New York City, with whom Charles S. Warren, Pittsburgh, Pa., was on the joint brief, for petitioners. Jane L. Bloom, New York City, also entered an appearance for petitioner Natural Resources Defense Council.

Brian V. Faller, Attorney, Dept. of Justice, with whom Roger J. Marzulla, Acting Asst. Atty. Gen., and Steven E. Silverman, Attorney, E.P.A., Washington, D.C., were on the brief, for respondents.

Christopher Harris, with whom G. William Frick and Catherine Eshelman (for American Petroleum Institute), Toni K. Allen and Douglas H. Greene (for Edison Electrice Institute), Douglas I. Greenhaus (for Nat. Auto. Dealers Ass'n), Alan J. Thiemann (for Nat. Ass'n of Truck Stop Operators), Patrick Cavanaugh, Washington, D.C., (for Nat. Oil Recyclers Ass'n), and Dimitri G. Daskal (for Service Station Dealers of America) were on the joint brief, for intervenors. Sue M. Briggum entered an appearance for intervenor Edison Elec. Institute in No. 86-1658, Frank E. McCarthy, Washington, D.C., entered an appearance for intervenor Nat. Auto. Dealers Ass'n in No. 86-1658, and Arnold S. Block, Philadelphia, Pa., entered an appearance for intervenor American Petroleum Institute in all cases.

Before BUCKLEY and WILLIAMS, Circuit Judges, and EDWARD D. RE, ^* Chief Judge, U.S. Court of International Trade.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Petitioners challenge a final determination by the Environmental Protection Agency not to list used oil destined for recycling and recycled oil as hazardous wastes. The Agency premised this conclusion on its finding that such a listing would attach the stigma of the label "hazardous waste" to recycled oil, thus discouraging recycling and its environmentally beneficial effects. As we conclude that the statute does not permit the Agency to consider these stigmatic consequences in deciding whether to list recycled oil as a hazardous waste, we grant the petitions for review.

I. BACKGROUND

This case requires us to find our way through a maze of statutes dealing with hazardous wastes, each of which we describe in chronological order of their enactment. Congress first dealt with the problem in the Resource Conservation and Recovery Act of 1976 ("RCRA"), Pub.L.No. 94-580, 90 Stat. 2795, which it substantially revised in the Solid Waste Disposal Act Amendments of 1980, Pub.L.No. 96-482, 94 Stat. 2334. Together, these statutes provide a comprehensive framework for the regulation by the Environmental Protection Agency ("EPA" or "Agency") of the treatment, storage, and disposal of hazardous wastes.

This regulatory scheme applies in two circumstances: when the EPA identifies, or "lists," a substance as a hazardous waste, and when the waste exhibits the characteristics of hazardous waste. The RCRA requires the EPA to promulgate regulations identifying those characteristics according to technical criteria such as "toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." 42 U.S.C. Sec. 6921(a) (1982). These regulations appear at 40 C.F.R. Secs. 261.20-.24 (1987). The EPA's listing decision also is based on these technical criteria supplemented by other factors. Id. at Secs. 261.10-.11.

At approximately the same time as the amendments to the RCRA took effect, Congress enacted the Used Oil Recycling Act of 1980 ("UORA"), Pub.L.No. 96-463, 94 Stat. 2055 (1980). Two provisions of that act are relevant to the present case. Section 7, now codified as amended at 42 U.S.C. Sec. 6935(a) (1982 & Supp. II 1984), provided:

Not later than [October 15, 1981], the Administrator [of the EPA] shall promulgate regulations establishing such performance standards and other requirements as may be necessary to protect the public health and the environment from hazards associated with recycled oil. In developing such regulations, the Administrator shall conduct an analysis of the economic impact of the regulations on the oil recycling industry. The Administrator shall ensure that such regulations do not discourage the recovery or recycling of used oil.

"Recycled oil" means "any used oil which is reused, following its original use, for any purpose.... Such term includes oil which is re-refined, reclaimed, burned or reprocessed." 49 U.S.C. Sec. 6903(37) (1982). UORA's section 7 permits the EPA to regulate recycled oil without classifying it as a hazardous waste.

Section 8 of the UORA provided:

Not later than [January 14, 1981], the Administrator ... shall--

(1) make a determination as to the applicability to used oil of the criteria and regulations promulgated under [RCRA, 42 U.S.C. Sec. 6921] relating to the characteristics of hazardous wastes, and (2) report to the Congress the determination together with a detailed statement of the data and other information upon which the determination is based.

In making a determination under paragraph (1), the Administrator shall ensure that the recovery and reuse of used oil are not discouraged.

94 Stat. at 2058 (uncodified). Section 8 did not direct the EPA to list used oil, but merely to "determin[e]" whether used oil meets the statutory and regulatory criteria, and then report that determination to Congress. The Agency complied with section 8, reporting to Congress its determination that certain types of used oils should be listed as a hazardous waste because of their toxic constituents.

Despite its report, the EPA failed to act on its determination by listing these used oils as hazardous wastes. Congress adopted sections 241-42 of the Hazardous and Solid Waste Amendments of 1984 ("HSWA"), codified at 42 U.S.C. Sec. 6935 (Supp. II 1984), as a "further prod" to the Agency. H.Rep.No. 198, pt. I, 98th Cong., 1st Sess. 64 (1983), U.S.Code Cong. & Admin.News 1984, 5576. The HSWA requires the EPA to decide within a specified time whether to list used oils as hazardous:

Not later than [November 8, 1985], the Administrator shall propose whether to list or identify used automobile and truck crankcase oil as hazardous waste under section 6921 of ... title . Not later than [November 8, 1986], the Administrator shall make a final determination whether to list or identify used automobile and truck crankcase oil and other used oil as hazardous wastes under section 6921....

42 U.S.C. Sec. 6935(b) (Supp. II 1984). The HSWA exempts the generators and transporters of used oil that the Agency listed as hazardous from the regulations ordinarily applicable to hazardous wastes if the used oil is recycled. Id. at Sec. 6935(c)(1). The HSWA further directs the EPA to promulgate standards concerning the generation and transportation of such recycled oil, "tak[ing] into account the effect of such regulations on environmentally acceptable types of used oil recycling...." Id. at Sec. 6935(c)(2)(A). The HSWA also lightens the regulatory load on recyclers. Id. at Sec. 6935(d).

Soon after the HSWA was enacted, the EPA proposed to list used oil as a hazardous waste because it met the criteria for listing under 42 U.S.C. Sec. 6921. 50 Fed.Reg. 49,258, 49,260 (proposed Nov. 29, 1985). After the close of the public comment period, but before the Agency's final decision, Congress enacted the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L.No. 99-499, 100 Stat. 1613. SARA gave the EPA additional authority to regulate recycled oil without classifying it as a hazardous waste. It provides that if the EPA regulates recycled oil under 42 U.S.C. Sec. 6935(a) (i.e., UORA's section 7), state enforcement programs would apply (42 U.S.C.A. Sec. 6926(h) (West.Supp.1988)), as would the federal criminal penalties (id. at Sec. 6923(d)(4) & (7)).

The EPA then issued its final decision not to list recycled oil as a hazardous waste because the stigmatic effects of such a listing would discourage recycling. 51 Fed.Reg. 41,900 (1986). The Agency deferred decision on whether to regulate recycled oil without listing it as hazardous, and on whether to list non-recycled used oil as a hazardous waste. Id. These petitions for review followed.

II. STANDING AND JURISDICTION

This case was brought by a number of petitioners. The Hazardous Waste Treatment Council is a trade association representing firms that treat hazardous waste. The Association of Petroleum Re-Refiners represents companies that re-refine used oils for use as lubricants and recycle used oil for other purposes. See 42 U.S.C. Sec. 6903 (39) (1982) (defining re-refining). Finally, the Natural Resources Defense Council ("NRDC") is a non-profit environmental organization, some of whose members live in communities affected by hazardous wastes. Although the EPA does not challenge petitioners' standing, the intervenors have raised the issue, and we would be obliged to consider it sua sponte. See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986).

An association such as the NRDC will have standing to sue on behalf of its members when they would otherwise have standing in their own right, the interests the organization seeks to protect are germane to its purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97...