Am Petroleum Institute v. US. Envt'l Protection Agency, Nos. 94-1683

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Citation216 F.3d 50
Parties(D.C. Cir. 2000) American Petroleum Institute, et al.,Petitioners v. United States Environmental Protection Agency, Respondent Chemical Manufacturers Association, Intervenor
Decision Date27 June 2000
Docket Number98-1507,94-1684,98-1506,Nos. 94-1683,94-1686,98-1514,98-1494

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216 F.3d 50 (D.C. Cir. 2000)
American Petroleum Institute, et al.,Petitioners
v.
United States Environmental Protection Agency, Respondent
Chemical Manufacturers Association, Intervenor
Nos. 94-1683, 94-1684, 94-1686, 98-1494, 98-1506, 98-1507, 98-1514
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 30, 2000
Decided June 27, 2000

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On Petitions for Review of Orders of the Environmental Protection Agency

Michael W. Steinberg and Thomas Sayre Llewellyn argued the causes for petitioners American Petroleum Institute, et al.

With them on the briefs were G. William Frick, Ralph J. Colleli, Jr., Joshua D. Sarnoff, David F. Zoll, Ronald A. Shipley, Christopher H. Marraro and John W. Kampman. Hunter L. Prillaman, David B. Graham and Judith A. Wenker entered appearances.

David Frederick and David R. Case argued the causes and filed the briefs for petitioners Louisiana Environmental Action Network, et al. Richard W. Lowerre entered an appearance.

Steven E. Silverman, Attorney, Environmental Protection Agency, Patricia R. McCubbin, Attorney, and Martin F. McDermott, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief were Lois J. Schiffer, Assistant Attorney General, David J. Kaplan and Alan Birnbaum, Attorneys, and Alan H. Carpien, Attorney, Environmental Protection Agency. Christopher S. Vaden, Attorney, U.S. Department of Justice, entered an appearance.

Ralph J. Colleli, Jr. argued the cause for Intervenor American Petroleum Institute. With him on the brief were G. William Frick and Thomas S. Llewellyn. David F. Zoll and Ronald A. Shipley entered appearances.

Before: Williams, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed PER CURIAM.*

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PER CURIAM:

Two sets of petitioners challenge regulations of the United States Environmental Protection Agency ("EPA") promulgated under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 et seq. (1994). The EPA rulemaking at issue concerned regulating several secondary materials generated by the petroleum refining and petrochemical industries as "solid waste" and "hazardous waste."

Industry petitioners, American Petroleum Institute ("API"), the Chemical Manufacturers Association ("CMA"), and Texaco, Inc. (collectively, "industry petitioners"), assert two main categories of challenges. The first category challenges EPA's regulation under RCRA of two materials as solid waste. The second challenges EPA's listing of certain refinery wastes as hazardous waste. Environmental petitioners, Louisiana Environmental Action Network ("LEAN"), Communities for a Better Environment of California ("CBE"), the Sierra Club, and the Environmental Technology Council ("ETC") (collectively, "environmental petitioners"), challenge EPA's failure to list certain items and further allege an Administrative Procedure Act ("APA"), 5 U.S.C. 551 et seq. (1994), notice and comment claim.

We deny the petition of the industry petitioners on all counts but one, on which we vacate and remand to EPA for further proceedings. Finding that we lack jurisdiction to consider the claims of environmental petitioners, we dismiss their petition.

I. Industry Petitioners' Challenges to EPA's Regulation of Recovered Oil and Wastewaters as Solid Waste

A. Statutory Framework

RCRA is a comprehensive environmental statute granting EPA authority to regulate solid and hazardous wastes. "Solid wastes" are governed by Subtitle D of RCRA, and are generally subject to less stringent management standards than "hazardous wastes" which are regulated under Subtitle C. For purposes of RCRA, Congress defined solid waste as follows:

The term "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, orcontained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities....

42 U.S.C. 6903(27).

In pursuit of its congressionally conferred duty and authority to regulate solid waste under RCRA, the EPA has adopted regulations defining solid waste for purposes of its hazardous waste regulations: "A solid waste is any discarded material," 40 C.F.R. 261.2(a)(1) (1999), subject to a number of exclusions enumerated in 261.4(a) and case-by-case variances under §§ 260.30 and 260.31. The term "discarded material" for purposes of the regulation means any material which is abandoned, recycled, or considered inherently wastelike. 40 C.F.R. 261.2(a)(2).

In 1994 and 1998 rulemakings in pursuit of its RCRA obligations, the EPA examined the production processes of the petroleum refining industry. As pertinent to the issue before us, EPA considered whether to exclude from the definition of solid waste two secondary materials: oil-bearing wastewaters generated by the petroleum refining industry and recovered oil produced by the petrochemical manufacturing industry. See Hazardous Waste Management System, Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities, 63

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Fed. Reg. 42,110 (1998) ("Final Rule"); Hazardous Waste Management System, Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes; Land Disposal Restrictions for Newly Identified Wastes; and CERCLA Hazardous Substance Designation and Reportable Quantities, 60 Fed. Reg. 57,747 (1995) ("Proposed Rule"); Identification and Listing of Hazardous Waste; Amendments to Definition of Solid Waste, 59 Fed. Reg. 38,536 (1994) ("1994 Rule"). EPA determined that oil-bearing wastewaters are solid waste for purposes of RCRA regulation, and that recovered oil from petrochemical facilities is excluded from the definition of solid waste only when specified conditions are met. See Proposed Rule, 60 Fed. Reg. at 57,755/3-57,756/1; Final Rule, 63 Fed. Reg. at 42,128-30; 40 C.F.R. 261.4(a)(12), (18). Industry petitioners challenge these conclusions.

B. Oil-Bearing Wastewaters

In petroleum refining, impurities are removed and usable hydrocarbon fractions are isolated from crude oil feed stock. See Final Rule, 63 Fed. Reg. at 42,113/3-42,115/1, 42,121/2.Large quantities of water are used, and the resulting wastewaters contain a small percentage of residual oil. These "oil bearing wastewaters" are destined for ultimate discharge, but only after a three-step treatment process is first applied. The first phase of treatment, known as "primary treatment," removes certain materials including the oil. This phase has at least two beneficial consequences: (1) it meets a Clean Water Act requirement that refineries remove oil from their wastewater, and (2) it allows refineries to recover a not insignificant quantity of oil (up to 1,000 barrels a day across the industry) which is cycled back into the refinery production process.

Industry petitioners and EPA disagree over when these wastewaters become discarded for purposes of the solid waste definition. While no one disputes that discard has certainly occurred by the time the wastewaters move into the later phases of treatment, the question is whether discard happens before primary treatment, allowing regulation of wastewater as solid waste at that point, or not until primary treatment is complete and oil has been recovered for further processing.

EPA's initial proposal excluded oil-bearing wastewaters. See 1994 Rule, 59 Fed. Reg. at 38,540/3 (citing Identification and Listing of Hazardous Waste; Amendments to Definition of Solid Waste, 53 Fed. Reg. 519, 525-26 (1988)). However, it changed its mind in 1994 and concluded that even before the oil is recovered in primary treatment, "the wastewaters are discarded materials and hence solid wastes subject to regulation under RCRA." 59 Fed. Reg. 38,540/1. EPA stated:"Primary wastewater treatment operations exist to treat plant wastewaters." Id. at 38,539/3. It noted that the percentage of oil in the wastewater is very small and "not significant in the context of a refinery's overall production activities," and that the Clean Water Act mandates such treatment. Id.; see also 40 C.F.R. Part 419; API v. EPA, 540 F.2d 1023 (10th Cir. 1976) (discussing water discharge regulations). For these stated reasons, EPA concluded that "[c]learly, wastewater treatment is the main purpose of the systems in question, and any oil recovery is of secondary import." 59 Fed Reg. at 38,539/3.

EPA restated its conclusion in its subsequent 1995 Proposed Rule, 60 Fed. Reg. at 57,755/3, and retained it in the Final Rule. See 63 Fed. Reg. at 42,184 (codified at 40 C.F.R. 261.4(a)(12)(ii)). The actual regulation does not mention wastewaters. But by not being excluded, all wastewaters including oil-bearing wastewaters are considered to fall under EPA's general regulatory definition of solid waste.

Whether a material has been "discarded," subjecting it to RCRA regulation, is a question we have considered in four prior cases. First, in American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"), we held that the term "discarded"

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conforms to its plain meaning. Id. at 1193.Thus, items that are "disposed of, abandoned, or thrown away" are discarded. Id. AMC I concluded that "in-process secondary materials," that is, materials "destined for immediate reuse in another phase of [an] industry's ongoing production process," are not discarded under RCRA. Id. at 1185, 1193. We recently reaffirmed that holding in Association of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir. 2000), where we reiterated that EPA cannot regulate as solid waste secondary materials "destined for reuse as part of a continuous industrial process" that is...

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72 practice notes
  • Environmental Protection Agency,
    • United States
    • Federal Register November 20, 2001
    • 20 Noviembre 2001
    ...including perpetual ``storage'' falls into the regulatory category of land disposal.\10\ (See also American Petroleum Institute v. EPA, 216 F. 3d 50 (D.C. Cir. 2000)). If slags have been speculatively accumulated (i.e., held beyond the timeframes specified in 40 CFR 261.1(c)(8) without recy......
  • Part II
    • United States
    • Federal Register October 30, 2008
    • 30 Octubre 2008
    ...materials undergoing sham recycling are discarded and, consequently, are solid wastes under RCRA (see American Petroleum Institute v. EPA, 216 F.3d 50, 58-59 (DC Cir. A Series of DC Circuit Court Decisions on the Definition of Solid Waste Trade associations representing mining and oil refin......
  • Environmental Protection Agency,
    • United States
    • Federal Register September 14, 2000
    • 14 Septiembre 2000
    ...1987) (AMC I)); American Mining Congress v. EPA (907 F. 2d 1179, 1186 (D.C. Cir. 1990) (AMC II)); American Petroleum Institute v. EPA (216 F. 3d 50 (D.C. Cir. 2000)). The most recent decision, Association of Battery Recyclers, Inc. v. EPA (208 F. 3d 1047 (D.C. Cir 2000)), remanded a rule re......
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 15 Septiembre 2003
    ...factual basis for nationwide regulation of small sites makes the Phase II Rule arbitrary and capricious. Am. Petroleum Inst. v. EPA, 216 F.3d 50, 58 (D.C.Cir.2000) (invalidating a solid waste rule because EPA "failed to provide a rational explanation for its decision" declining to exclude o......
  • Request a trial to view additional results
57 cases
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 15 Septiembre 2003
    ...factual basis for nationwide regulation of small sites makes the Phase II Rule arbitrary and capricious. Am. Petroleum Inst. v. EPA, 216 F.3d 50, 58 (D.C.Cir.2000) (invalidating a solid waste rule because EPA "failed to provide a rational explanation for its decision" declining to exclude o......
  • Ohio Valley Environmental Coalition v. Hurst, Civil Action No. 3:03-2281.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 31 Marzo 2009
    ...thereby injure a member of the organization." Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002) (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000); La. Envtl. Action Network, 172 F.3d at 68) (internal quotations omitted). NWP 21 (2007) became effective on March 19, 2007,......
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 14 Enero 2003
    ...factual basis for nationwide regulation of small sites makes the Phase II Rule arbitrary and capricious. Am. Petroleum Inst. v. EPA, 216 F.3d 50, 58 (D.C.Cir.2000) (invalidating a solid waste rule because EPA "failed to provide a rational explanation for its decision" declining to exclude o......
  • Am. for Safe Access v. Drug Enforcement Admin., No. 11–1265.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 11 Marzo 2013
    ...injured, that the defendant caused its injury, and that the court could redress that injury.” Id. (quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000)). “In assessing [Petitioners'] standing, we must assume they will prevail on the merits of their claims.” NB ex rel. Peacock ......
  • Request a trial to view additional results
3 books & journal articles
  • The D.C. Circuit Takes a Wrong Turn: Redefining Solid Waste Under RCRA
    • United States
    • Environmental Law Reporter Nbr. 49-6, June 2019
    • 1 Junio 2019
    ...exercised its discretion when it established legitimacy criteria to distinguish non-hazardous secondary materials used as fuel 225. 216 F.3d 50, 30 ELR 20686 (D.C. Cir. 2000) ( API II ). 226. Id . at 58. 227. Id . 228. Id . 229. Safe Food & Fertilizer v. Environmental Prot. Agency, 350 F.3d......
  • ENVIRONMENTAL CRIMES
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • 1 Julio 2021
    ...who acts with a good faith belief that the corporation is in compliance has an absolute defense). 510. Am. Petroleum Inst. v. EPA, 216 F.3d 50, 56–58 (D.C. Cir. 2000) (holding EPA’s classif‌ication of oil- bearing wastewaters as solid waste was constitutional under Chevron analysis, but arb......
  • RCRA's Universe: Solid and Hazardous Wastes
    • United States
    • RCRA permitting deskbook
    • 10 Mayo 2011
    ...as an ingredient . . . in an industrial process to make a product” under §261.1(c)(5)(l)); American Petroleum Institute v. EPA, 216 F.3d 50, 58-59, 30 ELR 20686 (D.C. Cir. 2000) (EPA can regulate material “discarded” through sham recycling even though it cannot regulate under RCRA materials......

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