861 F.2d 277 (D.C. Cir. 1988), 86-1143, Hazardous Waste Treatment Council v. U.S. E.P.A.

Docket Nº:86-1143.
Citation:861 F.2d 277
Party Name:HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, Edison Electrical Institute, et al., Intervenors [HWTC II].
Case Date:October 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 277

861 F.2d 277 (D.C. Cir. 1988)

HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents,

Edison Electrical Institute, et al., Intervenors [HWTC II].

No. 86-1143.

United States Court of Appeals, District of Columbia Circuit.

October 7, 1988

Page 278

As Amended Oct. 7, 1988. Rehearing and Rehearing En Banc Denied Dec. 20, 1988.

Argued March 7, 1988.

David R. Case, for petitioner. Ridgway M. Hall, Jr., Washington, D.C., also entered an appearance for petitioner.

Page 279

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

William R. Weissman, with whom Toni K. Allen, Washington, D.C., was on the brief, for intervenors Edison Elec. Institute, et al. Sue M. Briggum and Douglas H. Green, Washington, D.C., also entered appearances for intervenors.

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

Opinion PER CURIAM. [**]

PER CURIAM:

The Hazardous Waste Treatment Council petitions for review of the Environmental Protection Agency's rules concerning burning of hazardous wastes, including used oil, as fuel. Petitioner attacks the rules because they (1) fail to regulate generators, transporters, and others who deal with used oil, (2) insufficiently regulate used oil that exhibits the characteristics of a hazardous waste, (3) regulate under the used oil (rather than the hazardous waste) rules those who generate a small quantity of hazardous waste and mix it with used oil, (4) permit circumvention of the rules by the dilution of used oil with virgin oil, and (5) fail to regulate certain combustion residuals resulting from the burning of hazardous waste fuels. We conclude that petitioner has representational standing to raise all but the last challenge. On the merits, we uphold the regulations petitioner had standing to challenge as reasonable constructions of the statute.

  1. BACKGROUND

    1. Statutory and Regulatory Background

      The statutory and regulatory treatment of hazardous wastes in general and used oil in particular is described more fully in a companion case, Hazardous Waste Treatment Council v. EPA, 861 F.2d 270, No. ("HWTC I "), issued today. Subtitle C of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Secs. 6921-6939a (1982 & Supp. III 1985), establishes a comprehensive scheme to regulate hazardous wastes. This scheme applies when the Environmental Protection Agency ("EPA" or "Agency") identifies ("lists") a substance as a hazardous waste, or when a substance exhibits one of the technical characteristics of hazardousness developed by the EPA. See id. at Sec. 6921(b); 40 C.F.R. Secs. 261.10-.11 (1987) (criteria for listing); id. at Secs. 261.20-.24 (characteristics of hazardous wastes).

      Congress supplemented the RCRA by requiring the EPA to promulgate standards for hazardous waste burned as fuel, whether the hazardous waste is burned alone or in combination with another substance. 42 U.S.C. Sec. 6924(q)(1) (Supp. III 1985).

      Congress also directed the EPA to deal with used oil. Section 7 of the Used Oil Recycling Act of 1980 ("UORA"), Pub.L. No. 96-463, 94 Stat. 2055 (codified as amended at 42 U.S.C. Sec. 6935(a) (Supp. III 1985)), authorizes the Agency to regulate recycled oil, whether or not it classifies such oil as hazardous under subtitle C of the RCRA. (Recycled oil includes used oil that is burned, the subject of the challenged regulations. 49 U.S.C. Sec. 6903(37) (1982).) In 1984, Congress directed the EPA to determine whether to list used oils as hazardous wastes. 42 U.S.C. Sec. 6935(b) (Supp. III 1985). If it listed any, the Agency was to promulgate special regulations for the generators, transporters, and recyclers of used oil. Id. at Secs. 6935(c) & (d). In HWTC I, we overturned the EPA's decision not to list any recycled oils as hazardous under section 6935(b).

      Finally, 42 U.S.C. Sec. 6921(d)(4) (Supp. III 1985) permits the EPA to exercise its discretion whether to regulate those who generate

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      100 kilograms or less of hazardous waste per month.

    2. Agency Action

      The final rule that petitioner challenges, 50 Fed.Reg. 49,164 (1985) (codified at 40 C.F.R. pts. 261, 264-66, 271) establishes two general categories for used oil that is burned for energy recovery. The first category is hazardous oil, which is defined as used oil deliberately mixed with hazardous waste. Hazardous oil is regulated in the same manner as any other hazardous waste fuel. 50 Fed.Reg. at 49,175-78; see 40 C.F.R. pt. 266, subpart D (1987) (hazardous waste fuel regulations). Used oil that contains 1,000 parts per million ("ppm") of total halogens is presumed to be hazardous oil. The presumption can be rebutted by the holder of the oil. 40 C.F.R. Sec. 266.40(c). All other used oil is classified simply as used oil, even if it has acquired the characteristics of hazardous waste in the course of its normal use. Id. at Sec. 266.40(d). (We shall refer to this category as "regulated used oil.")

      The Agency has promulgated a variety of specifications for regulated used oil relating to characteristics such as ignitibility and the concentration of certain contaminants. Id. at Sec. 266.40(e). "Specification" oil (oil that meets the specifications) is subject only to analysis and recordkeeping requirements. Id. & Sec. 266.43(b). "Off-specification" oil may be burned only in certain types of industrial boilers, id. at Sec. 266.41; marketers and industrial burners must comply with certain administrative requirements, id. at Secs. 266.43-.44. The EPA permits off-specification oil to be mixed with previously unused ("virgin") oil so as to dilute the contaminant concentration and thus meet the specifications. 50 Fed.Reg. at 49,187-88.

      The rules also deal with so-called small quantity generators, i.e., those which produce 100 kilograms or less of hazardous waste per month. The Agency has determined that such wastes ordinarily will not be regulated, 51 Fed.Reg. 10,146, 10,153 (1986) (codified as amended at 40 C.F.R. Sec. 261.5 (1988)), and that determination has not been challenged. When these wastes are combined with used oil, however, the mixture is treated only as regulated used oil. As such, it is not subject to the more stringent regulations applicable to other hazardous waste fuels.

      Finally, the Agency concluded that under the Bevill Amendment, 42 U.S.C. Sec. 6921(b)(3), residues from burning hazardous waste fuels in mining furnaces and cement kilns would be exempt from regulation, as would residues from coal-burning utility boilers in which hazardous waste was fifty percent or less of their fuels.

  2. STANDING AND JURISDICTION

    1. Standing

      The Hazardous Waste Treatment Council is a national trade organization of firms engaged in the treatment of hazardous waste and the manufacture of equipment for that purpose. The gist of its complaint here is that EPA's regulations are not comprehensive and strict enough to comply fully with the controlling statute, RCRA. Concerned with the apparent anomaly of regulated entities demanding stricter regulation, we requested the parties to brief the issue of standing. Besides its brief, the Council has submitted the affidavits of its executive director and also of executives of five member companies.

      We conclude that the Council has standing insofar as it represents members on whom regulatory laxity may inflict environmental injury; we reject standing for it as representative of firms that may suffer competitive loss because EPA has not forced on their competitors as demanding (and expensive) techniques as they themselves employ.

      1. Allegations as to Standing.

      The Council's member firms operate facilities in 48 states. They provide treatment or disposal services employing both established and emerging technologies and methods for treatment and management: incineration and other thermal destruction, reclamation, biological and chemical treatment, land disposal after pre-treatment,

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      and hazardous site cleanups. A number of member companies are engaged in the reclamation of used oil, the blending of used oil for use as industrial fuel, and the treatment and disposal of used oil.

      The Council's Articles of Incorporation declare that among its purposes is

      To promote the protection of the environment through the adoption of environmentally sound procedures and methods of destroying and treating hazardous wastes and the proper management of residues of those treatment and destruction processes.

      The affidavits submitted by the Council and various members reveal the members' varied relations to the substantive issues raised in this case. We can identify three different types:

      a. Competitor claims. At least three members claim that the asserted laxity of the regulations will diminish the market for their high-tech control services. (CF Systems Corporation, Swatz Affidavit; SYSTECH Corporation, Eifert Affidavit; Ross Environmental Services, Stiff Affidavit.) Firms with contaminated used oil on hand will, they argue, be free to re-use that oil without either using the treatment services of Council members or incurring the expense of themselves providing the high-quality treatment that Council members offer. (Alternatively, such firms may sell the contaminated used oil to others for their use, again without either using the services of these Council members or incurring comparable costs.) As a result, the market for the services of these members of the Council will be smaller than it would have been if the EPA had adopted the Council's views. The affidavit of the Council's executive director, Richard C. Fortuna, refers solely to this injury.

      Ross and yet another company (ThermalKEM) assert a variation on this claim. The variation...

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