Shell Oil Co. v. E.P.A.
| Decision Date | 12 February 1992 |
| Docket Number | 80-1888,80-1998 and 81-1452,80-1955,80-1938,Nos. 80-1532,80-1976,80-1869,80-1570,80-1572,80-1987,80-1978,80-1890,80-1881,80-1909,80-1988,s. 80-1532 |
| Citation | 950 F.2d 741 |
| Parties | , 292 U.S.App.D.C. 332, 22 Envtl. L. Rep. 20,305 SHELL OIL COMPANY v. ENVIRONMENTAL PROTECTION AGENCY. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Environmental protection agency.
Michael W. Steinberg, with whom Hunter L. Prillaman, Arline M. Sheehan, G. William Frick, and Ralph J. Colleli, Jr. were on the brief, for Shell Oil Co. and American Petroleum Institute, et al. ("API"), petitioners in 80-1532 and 80-1881A, and intervenors in 81-1452. John R. Quarles, Scott A. Harman, John C. Chambers, Jr., and Stark Ritchie also entered appearances for Shell Oil and API.
Donald J. Patterson, with whom John N. Hanson, Aaron H. Goldberg, Edward M. Green, and Roderick T. Dwyer were on the brief, for American Min. Congress, et al. ("AMC"), petitioners in 80-1987A and intervenors in 80-1532, 80-1978A, and 81-1452. John D. Giglio, James R. Walpole, Susan L. Smith, John D. Fognani, and John D. Austin, Jr. also entered appearances for AMC.
Karen D. Florini for Environmental Defense Fund ("EDF"), petitioner in 80-1978A and intervenor in 81-1452. David J. Lennett also entered an appearance for EDF.
David F. Zoll, Ronald Shipley, and John T. Smith II were on the joint brief for Chemical Mfrs. Ass'n ("CMA"), petitioner in 80-1572 and 80-1976 and intervenor in 80-1532 and 81-1452. Theodore L. Garrett, Clare Dalton, and Jennifer L. Machlin also entered appearances for CMA.
Karl S. Bourdeau, Steven F. Hirsch, and Barton C. Green were on the joint brief for American Iron and Steel Institute, et al., petitioners in 80-1888 and intervenors in 80-1532 and 81-1452. Gary H. Baise and David R. Berz also entered appearances for American Iron and Steel Institute, et al.
William R. Weissman and Douglas H. Green were on the joint brief for petitioners Edison Elec. Institute, et al., in 80-1890 and intervenors Cincinnati Gas and Electric Co., et al., in 80-1532, 80-1570, 80-1572, and 81-1452. Thomas H. Truitt, Charles C. Abeles, and David B. Weinberg also entered appearances for Edison Elec. Institute, et al., and Cincinnati Gas & Electric, et al.
Michael S. Giannotto was on the joint brief for petitioners Dawn Min. Co., et al., in 80-1998. Benjamin W. Boley and James R. Bieke also entered appearances for Dawn Min. Co., et al.
Kurt E. Blase was on the joint brief for petitioner Kennecott Corp. in 80-1938. Alfred V.J. Prather, Edwin H. Seeger, and Carl B. Nelson, Jr., also entered appearances for Kennecott Corp.
William L. Roseby was on the joint brief for petitioner Ford Motor Co. in 80-1988.
John D. Conner, Robert L. Ackerly, Christine Volz, and Richard A. Flye entered appearances for petitioner The Fertilizer Institute in 80-1570 and 80-1869.
Kenneth A. Rubin and John R. Quarles, Jr. entered appearances for petitioners Gulf and Western Natural Resources Group and Stablex Corp. in 80-1909A and 80-1955A.
William C. Brashares and Charles A. Samuels entered appearances for Nat. Solid Wastes Management Ass'n, petitioner in 81-1452 and intervenor in 80-1532.
Mary Elizabeth Ward and Christopher S. Vaden, Attorneys, Dept. of Justice, with whom Barry M. Hartman, Deputy Asst. Atty. Gen., E. Donald Elliott, Gen. Counsel, Joshua D. Sarnoff, and Steven E. Silverman, Attorneys, E.P.A. ("EPA"), were on the brief, for respondent in all cases. Lee R. Tyner, Lloyd S. Guerci, Anthony Z. Reisman, and Diane L. Donley, Attorneys, Dept. of Justice, and Mark A. Greenwood, Caroline Wehling, and Michael Dworkin, Attorneys, EPA, also entered appearances for respondent.
Daniel J. Greenwald III, James R. Walpole, and Gregory Chafee entered appearances for intervenors American Paper Institute and Nat. Forest Products Ass'n in 80-1532 and 81-1452.
David R. Case entered an appearance for intervenor Hazardous Waste Treatment Council in 80-1532.
Richard E. Schwartz entered an appearance for intervenor American Footwear Industries Ass'n in 80-1532.
Sean O. Coffey entered an appearance for intervenor Department of Environmental Management of the State of Rhode Island in 80-1532.
David S. Tatel, Peter A. Rohrbach, and Sheldon E. Steinbach entered appearances for intervenor American Council on Educ. in 80-1532.
Charles M. Darling IV, J. Patrick Berry, and Stephen L. Teichler entered appearances for intervenors Tenneco Oil Co., et al. in 80-1532.
Lee C. White and Robert J. Saner II entered appearances for intervenor Ass'n of Metropolitan Sewerage Agencies in 80-1532.
Karl S. Bourdeau entered an appearance for intervenor Dow Chemical Co. in 81-1452.
J. Brian Molloy entered an appearance for intervenor SCA Services in 81-1452.
Before BUCKLEY, WILLIAMS and THOMAS, * Circuit Judges.
Opinion PER CURIAM.
In these consolidated cases, petitioners challenge both the substance of several rules promulgated by the Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act of 1976 and its compliance with the Administrative Procedure Act's rulemaking requirements.
Consolidated petitioners 1 challenge two rules that categorize substances as hazardous wastes until a contrary showing has been made: the "mixture" rule, which classifies as a hazardous waste any mixture of a "listed" hazardous waste with any other solid waste, and the "derived-from" rule, which so classifies any residue derived from the treatment of hazardous waste. They argue that the EPA failed to provide adequate notice and opportunity for comment when it promulgated the mixture and derived-from rules, and that the rules exceed the EPA's statutory authority.
Three petitioners present separate challenges to other rules included in the same rulemaking. In the first, the American Mining Congress asserts that the EPA exceeded its statutory authority and failed to provide notice and opportunity to comment in defining "treatment" to include processes designed to recover valuable materials from the recycling of solid wastes. Second, the American Petroleum Institute attacks the EPA's requirement of "leachate monitoring" at land treatment facilities for failure to provide notice and opportunity to comment. Finally, the Environmental Defense Fund challenges the EPA's "permit-shield" provision, a regulation that, with some exceptions, exempts a facility from enforcement proceedings for statutory violations if it is in compliance with its permit conditions.
We agree with petitioners that the EPA failed to give sufficient notice and opportunity for comment in promulgating the "mixture" and "derived-from" rules and the leachate monitoring requirement. We therefore remand the rules to the Administrator. We conclude that the regulatory definition of "treatment" does not comport with the statutory definition. The regulation of resource recovery, however, falls within the EPA's broad authority under Subtitle C to regulate hazardous waste management. Therefore, we deny the American Mining Congress's petition. We also reject its contention that the EPA failed to provide adequate notice of the regulation of resource recovery. As for the permit-shield provision, all parties agree that it cannot trump the citizen's statutory right to sue. As applied to the Agency, however, the regulation lies well within the limits of the EPA's enforcement discretion.
The EPA promulgated the disputed rules in order to implement the Resource Conservation and Recovery Act ("RCRA"), Pub.L. No. 94-580, 90 Stat. 2795 (1976) (). 2 RCRA created a "cradle-to-grave" system for tracking wastes from their generation to disposal. The statute consists of two main parts: one governs the management of non-hazardous solid waste; the other, hazardous waste. See American Mining Congress v. EPA, 824 F.2d 1177, 1179 (D.C.Cir.1987) ("AMC I").
As enacted, Subtitle C of RCRA required the EPA to establish a comprehensive national system for safely treating, storing, and disposing of hazardous wastes. It defined "hazardous waste," in part, as a "solid waste" which may "pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." 42 U.S.C. § 6903(5) (1976). It gave the EPA until April 21, 1978 to develop and promulgate criteria for identifying characteristics of hazardous waste and to list particular wastes as hazardous. See id. § 6921(a), (b). It further required the EPA to promulgate regulations "as may be necessary to protect human health and the environment" respecting the practices of generators, transporters, and those who own or operate hazardous waste treatment, storage, or disposal facilities. Id. §§ 6922- 6924. RCRA prohibited treatment, storage, or disposal of hazardous waste without a permit and required the EPA to promulgate standards governing permits for facilities performing such functions. Id. § 6925.
On February 17, 1977, the EPA published a Notice of Intent to Develop Rulemaking, 42 Fed.Reg. 9,803 (1977); and on May 2, 1977, it published an Advance Notice of Proposed Rulemaking, 42 Fed.Reg. 22,332 (1977), which set forth detailed questions on each of the subsections of Subtitle C. In addition, it circulated for comment several drafts of regulations, met with experts and representatives of interested groups, and held public hearings. This process culminated in the publication, on December 18, 1978, of proposed regulations covering most of the...
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