Environmental Defense Fund, Inc. v. Gorsuch, Nos. 81-2025

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WILKEY and MIKVA; FAIRCHILD; WILKEY
Citation230 U.S.App.D.C. 8,713 F.2d 802
Docket NumberNos. 81-2025,81-2214 and 81-2295
Decision Date26 July 1983
Parties, 230 U.S.App.D.C. 8, 13 Envtl. L. Rep. 20,712 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. Anne M. GORSUCH, Administrator, U.S. Environmental Protection Agency, Respondent, Edison Electric Institute, et al., Intervenors. ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. Anne M. GORSUCH, Administrator, U.S. Environmental Protection Agency, Respondent, Edison Electric Institute, et al., Intervenors. ENVIRONMENTAL DEFENSE FUND, INC., Appellant, Environmental Action, Inc. v. Gary M. DIETRICH, et al.

Page 802

713 F.2d 802
19 ERC 1410, 230 U.S.App.D.C. 8, 13
Envtl. L. Rep. 20,712
ENVIRONMENTAL DEFENSE FUND, INC., Petitioner,
v.
Anne M. GORSUCH, Administrator, U.S. Environmental
Protection Agency, Respondent,
Edison Electric Institute, et al., Intervenors.
ENVIRONMENTAL DEFENSE FUND, INC., Petitioner,
v.
Anne M. GORSUCH, Administrator, U.S. Environmental
Protection Agency, Respondent,
Edison Electric Institute, et al., Intervenors.
ENVIRONMENTAL DEFENSE FUND, INC., Appellant, Environmental Action, Inc.
v.
Gary M. DIETRICH, et al.
Nos. 81-2025, 81-2214 and 81-2295.
United States Court of Appeals,
District of Columbia Circuit.
Argued June 1, 1982.
Decided July 26, 1983.

Page 803

Petitions for Review of an Order of the Environmental Protection Agency consolidated with an Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-01715).

Khristine L. Hall, with whom David J. Lennett, Washington, D.C., was on brief, for Environmental Defense Fund, Inc., petitioner/appellant.

Lee R. Tyner, Atty., Dept. of Justice, Washington, D.C., for E.P.A., respondents/appellees. Donald W. Stever, Jacques Gelin and Nancy S. Bryson, Attys., Dept. of Justice, Washington, D.C., and Mark Greenwood, Atty., E.P.A., were on brief, for E.P.A., respondent/appellee. Patrick J. Cafferty, Jr., and Donald W. Stever, Atty., Dept. of Justice, Washington, D.C., also entered appearances for E.P.A., respondent/appellee.

Toni K. Allen, William R. Weissman and Stanley M. Spracker, Washington, D.C., were on brief, for intervenors Edison Elec. Institute, et al., and appellees Central and South West Corp., et al. Thomas H. Truitt, Washington, D.C., also entered an appearance

Page 804

for intervenors Edison Elec. Institute, et al., and appellees Central and South West Corp., et al.

Before WILKEY and MIKVA, Circuit Judges, and FAIRCHILD, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Senior Circuit Judge FAIRCHILD.

Dissenting opinion filed by Circuit Judge WILKEY.

FAIRCHILD, Senior Circuit Judge.

In each of these consolidated cases petitioner-appellant Environmental Defense Fund ("EDF") challenges the EPA Administrator's decision to defer processing operating permits for existing hazardous waste incinerators and storage impoundments under performance standards called for by the Resource Conservation and Recovery Act ("RCRA" or "the Act"), originally enacted October 21, 1976, Pub.L. 94-580, 90 Stat. 2796, and thereafter amended, principally October 21, 1980, Solid Waste Disposal Act Amendments of 1980, Pub.L. 96-482, 94 Stat. 2334. See 42 U.S.C.A. §§ 6901-6987 (1977 & Supp.1981). 1 After a review of the statutory framework of RCRA and the regulations promulgated under its provisions, we conclude that EPA's deferral of the permit process amounted to a suspension of a regulation without notice or comment in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500-576.

I. BACKGROUND

A. Statutory and Regulatory Framework of RCRA

RCRA calls on EPA to promulgate a comprehensive set of rules regulating the management of hazardous wastes from "cradle to grave." 47 Fed.Reg. 32275 (1982); 46 Fed.Reg. 2803 (1981). Accordingly, RCRA required the Administrator to promulgate regulations establishing standards for the generation, transportation, treatment, storage, and disposal of hazardous waste within eighteen (18) months of its enactment. See 42 U.S.C. §§ 6922-6924. Centrally important to this litigation is Congress' call for regulatory standards under 42 U.S.C. § 6924. Section 6924 requires the Administrator to establish "such performance standards, applicable to owners and operators of facilities for treatment, storage or disposal of hazardous waste ... as may be necessary to protect human health and the environment." 2

Page 805

Individual facilities are required to comply with these performance standards through a permit process established pursuant to 42 U.S.C. § 6925. Section 6925 orders the EPA to promulgate a rule requiring every hazardous waste treatment, storage or disposal facility to apply for and secure a permit from the Administrator as a condition of operation. 3 A permit may only be issued if the applicant has complied with disclosure requirements promulgated under § 6925 and performance standards promulgated under § 6924. 42 U.S.C. § 6925(c). Regulations issued under RCRA become effective six (6) months after the date of their promulgation. 42 U.S.C. § 6930(b).

Recognizing that EPA would be unable to review and issue permits to all existing hazardous waste management facilities by the effective date of the regulations, Congress provided in § 6925(e) that a facility in existence on the date of RCRA's enactment which has given EPA notice of its activities and made application for a permit is to be treated as though it were operating with a valid permit until its permit application is acted upon. 4 42 U.S.C. § 6925(e).

As mentioned, RCRA called on the Administrator to promulgate regulations creating a comprehensive federal waste management system within eighteen (18) months of its enactment--not later than April 1978. 42 U.S.C. §§ 6921-6927. EPA did not issue regulations within this statutory time limit. In the fall of 1978 EDF and others brought suits in District Court for the District of Columbia to require the Administrator "to perform his nondiscretionary

Page 806

duty to promulgate regulations implementing [RCRA]." State of Illinois v. Gorsuch, 530 F.Supp. 337 (D.D.C.1981). 5 See 42 U.S.C. § 6972(a)(2) (authorizing "citizen suits" in district court where Administrator failed to perform a non-discretionary duty under RCRA). On January 4, 1979, the district court entered an order setting time limits for the promulgation of the required regulations, including the promulgation of the § 6924 performance standards and the § 6925 permit process for hazardous waste treatment, storage, and disposal facilities.

After numerous postponements, EPA began to comply with the district court's order. EPA did not, however, issue all the regulations called for by RCRA and the court at the same time; rather, the agency issued the regulations in "phases." Promulgation of the first phase of the regulations was substantially completed on May 19, 1980. The "Phase I" regulations established the basic structure for RCRA's system of hazardous waste management. See 45 Fed.Reg. 33066-588 (1980) (codified at 40 C.F.R. Parts 122-124, 260-265). Phase I regulations did not, however, establish the technical performance standards for hazardous waste treatment, storage or disposal facilities required by § 6924. EPA indicated at the time that because of the "complexity" of the issues these standards would be issued in "Phase II" of its promulgation process. 6 Id. at 33156-57.

The significance of § 6924 technical standards is reflected in the regulations' two-part permit process. Part A of the application requests basic information about an applicant's hazardous waste management facility including its location, a description of the process used to treat, store or dispose of hazardous waste, and a list of hazardous wastes processed. See 40 C.F.R. § 122.24 (1982). EPA indicated this information would provide it with data needed to establish initial priorities in permitting facilities. 45 Fed.Reg. 33290, 33322 (1980). Part B of the application demands far greater detail in order to insure compliance with § 6924 technical requirements promulgated during Phase II. See 40 C.F.R. § 122.25 (1982).

Prior to the effectiveness of § 6924 standards, existing waste management facilities were only required to submit a Part A application. Further, during this Phase I period, submission of Part A and compliance with basic notification requirements qualified the facility for interim status, and therefore continued operation, under § 6925(e). 40 C.F.R. § 122.21(c) (1982). A facility continues to enjoy interim status until EPA issues § 6924 performance standards applicable to that facility and EPA calls in Part B applications under the newly promulgated standards. Id. Even then, a facility that submits a Part B application will continue in interim status until EPA has taken final action on its application.

For purposes of this litigation it is important to note the distinctly different obligations a facility has under RCRA and its regulations (1) if it has attained interim status, (2) if it has obtained a permit, or (3) if it has accomplished neither (1) nor (2) by failing to submit a Part A or B application when called on to do so.

A facility in the first group is required to comply with interim status standards written to be inexpensive and easily implemented. See 45 Fed.Reg. 33154-258 (codified at 40 C.F.R. Part 265). These standards were not intended to be "the final answer to the long-term environmental problems caused by hazardous waste disposal; they really form the outline of the technical standards ... that are to come." Id. at 33157. A facility in the second group must comply with § 6924 technical performance standards. 7

Page 807

7] See 42 U.S.C. § 6925(c). A facility in the third group must stop operations on the effective date of the regulations requiring a Part A or calling in a Part B permit application. At the end of the first phase of EPA's promulgation of regulations under RCRA no § 6924 technical standards had been promulgated, no final action was possible on permit applications, and hazardous waste management facilities that had submitted a Part A application were free to continue operating so long as they were in compliance with the minimal restrictions of the interim status standards.

B. Promulgation of § 6924 Standards

After further extensions of time by the court, and opportunity for notice and comment, EPA issued Phase II standards pursuant to § 6924. Among them were performance standards promulgated in January 1981 for the...

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52 practice notes
  • Tallahassee Memorial Regional Medical Center v. Bowen, Nos. 85-3839
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 5, 1987
    ...Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 810-11 (D.C.Cir.1983); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 19 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 1......
  • Fund for Animals v. U.S. Bureau of Land Manag., No. 04-5359.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 18, 2006
    ...F.3d 876, 883 (D.C.Cir.2003) (same); General Elec. Co. v. EPA, 290 F.3d 377, 383-85 (D.C.Cir.2002) (same); Envtl. Def. Fund v. Gorsuch, 713 F.2d 802, 816 (D.C.Cir.1983) (same); Chamber of Commerce of U.S. v. OSHA, 636 F.2d 464, 468 (D.C.Cir.1980) "Our cases . . . make clear that an agency p......
  • Sierra Club v. Jackson, Civil Action No. 11-1278 (PLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 9, 2012
    ...normally it does. See Environmental Defense Fund v. EPA, 716 F.2d 916, 920 (D.C. Cir. 1983) (citing Environmental Defense Fund v. Gorsuch, 713 F.2d 802, 816 (D.C. Cir. 1983); NRDC v. U.S. EPA, 683 F.2d 752, 761 (3d Cir. 1982)); and Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580......
  • Kennecott Utah Copper Corp. v. U.S. Dept. of Interior, Nos. 93-1700
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 5, 1996
    ...Citing Natural Resources Defense Council, Inc. v. EPA, 683 F.2d 752 (3d Cir.1982) and Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, Kennecott finally claims that the agency's "indefinite postponement" of the 1993 Document qualifies as a regulation. We disagree. In the cases cit......
  • Request a trial to view additional results
53 cases
  • Tallahassee Memorial Regional Medical Center v. Bowen, Nos. 85-3839
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 5, 1987
    ...Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 810-11 (D.C.Cir.1983); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 19 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 1......
  • Fund for Animals v. U.S. Bureau of Land Manag., No. 04-5359.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 18, 2006
    ...F.3d 876, 883 (D.C.Cir.2003) (same); General Elec. Co. v. EPA, 290 F.3d 377, 383-85 (D.C.Cir.2002) (same); Envtl. Def. Fund v. Gorsuch, 713 F.2d 802, 816 (D.C.Cir.1983) (same); Chamber of Commerce of U.S. v. OSHA, 636 F.2d 464, 468 (D.C.Cir.1980) "Our cases . . . make clear that an age......
  • Sierra Club v. Jackson, Civil Action No. 11-1278 (PLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 9, 2012
    ...normally it does. See Environmental Defense Fund v. EPA, 716 F.2d 916, 920 (D.C. Cir. 1983) (citing Environmental Defense Fund v. Gorsuch, 713 F.2d 802, 816 (D.C. Cir. 1983); NRDC v. U.S. EPA, 683 F.2d 752, 761 (3d Cir. 1982)); and Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580......
  • Kennecott Utah Copper Corp. v. U.S. Dept. of Interior, Nos. 93-1700
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 5, 1996
    ...Citing Natural Resources Defense Council, Inc. v. EPA, 683 F.2d 752 (3d Cir.1982) and Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, Kennecott finally claims that the agency's "indefinite postponement" of the 1993 Document qualifies as a regulation. We disagree. In the......
  • Request a trial to view additional results

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