Hazardous Waste Treatment Council v. Thomas

• Decision Date: 15 September 1989
• Docket Number: Nos. 87-1492,87-1545,s. 87-1492
• Citation: 885 F.2d 918
• Parties: , 280 U.S.App.D.C. 296, 19 Envtl. L. Rep. 21,409 HAZARDOUS WASTE TREATMENT COUNCIL v. Lee M. THOMAS, Administrator and U.S. Environmental Protection Agency. CHEMICAL MANUFACTURERS ASSOCIATION v. U.S. ENVIRONMENTAL PROTECTION AGENCY. CHEMICAL WASTE MANAGEMENT, INC. v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee H. Thomas, Administrator.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 918

885 F.2d 918

30 ERC 1250, 280 U.S.App.D.C. 296, 19

Envtl. L. Rep. 21,409

HAZARDOUS WASTE TREATMENT COUNCIL v. Lee M. THOMAS, Administrator and U.S. Environmental

Protection Agency.

CHEMICAL MANUFACTURERS ASSOCIATION v. U.S. ENVIRONMENTAL PROTECTION AGENCY.

CHEMICAL WASTE MANAGEMENT, INC. v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee H. Thomas, Administrator.

Nos. 87-1492, 87-1545.

United States Court of Appeals, District of Columbia Circuit.

Argued March 22, 1989.

Decided Sept. 15, 1989.

David R. Case, with whom Ridgway M. Hall, Jr., Washington, D.C., was on the brief, for Hazardous Waste Treatment Council, petitioner in No. 87-1492 and intervenor in No. 87-1545 and No. 87-1546.

Mary Elizabeth Ward, Attorney, Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., and Steven E. Silverman, Attorney, E.P.A., and Lawrence Jensen, General Counsel, E.P.A., Washington, D.C., were on the brief, for respondents. Lisa F. Ryan, Washington, D.C., also entered an appearance for respondent.

William R. Weissman and Douglas H. Green, Washington, D.C., entered appearances for intervenor The Edison Elec. Institute, et al., in No. 87-1492 and No. 87-1545.

G. William Frick, Arnold S. Block, and Thomas S. Llewellyn, Washington, D.C., entered appearances for intervenor American Petroleum Institute.

John T. Smith II, Washington, D.C., entered an appearance for Chemical Mfrs. Ass'n, petitioner in No. 87-1545 and intervenor in No. 87-1492. David F. Zoll and Kenneth M. Kastner, Washington, D.C., entered appearances for Chemical Mfrs. Ass'n., intervenor in No. 87-1492.

Angus Macbeth and Monica Schwebs, Washington, D.C., entered appearances for Chemical Waste Management, Inc., petitioner in No. 87-1546.

Before WALD, Chief Judge, and SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge D.H. GINSBURG.

Dissenting opinion filed by Chief Judge WALD.

D.H. GINSBURG, Circuit Judge:

The Hazardous Waste Treatment Council petitions for review of the so-called California List rule promulgated by the Environmental Protection Agency pursuant to Sec. 3004(d) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Secs. 6901, et seq., as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA). Subtitle C of RCRA, as thus amended, establishes a "cradle-to-grave" regulatory structure for the safe treatment, storage, and disposal of hazardous wastes.

HWTC here alleges that the California List rule is inconsistent with RCRA's scheme in three respects: first, that the rule fails to fulfill an alleged statutory duty to lower the maximum permissible concentrations of California List wastes ¹ in substances subject to land disposal; second, that it impermissibly permits California List wastes that have been solidified to escape the reach of the land disposal prohibitions; and third, that it facilitates evasion of those prohibitions by permitting a waste generator to send its wastes directly to a land disposal facility (rather than first to a treatment facility) based upon the generator's knowledge that the waste does not contain prohibited levels of California List constituents.

HWTC is "a national trade association of over 65 commercial firms that use advanced and established treatment technologies for the management of hazardous waste, and supporting equipment manufacturers." The Council contends that it has standing as a representative of its member companies under Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), in which the Supreme Court held that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim nor the relief requested requires the participation of individual members in the lawsuit.

EPA does not dispute, nor do we have any basis upon which to doubt, that HWTC satisfies the latter two of these three requirements for representational standing. Whether any of HWTC's members would have standing to raise the claims presented here, however, is disputed on both prudential and constitutional grounds.

Because we conclude that HWTC lacks prudential standing to pursue these claims, we dismiss the petitions for review without reaching either the constitutional standing question or the merits. ²

I. THE PRUDENTIAL STANDING TEST APPLIES

Whether the doctrine of prudential standing so operated as to preclude HWTC from challenging other EPA decisions under RCRA was much mooted in two recent cases--Hazardous Waste Treatment Council v. EPA (HWTC II), 861 F.2d 277, 284 (D.C.Cir.1988) and Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433 (D.C.Cir.1989). In this case, however, the Council claims for the first time that the doctrine is not even applicable in RCRA cases, on the ground that the broad judicial review provision in the statute simply does not admit of any prudential limitation. HWTC argues, in other words, that Congress has directed the courts to review EPA action under RCRA at the instance of any litigant who satisfies the requirements for constitutional standing. It cites for this proposition Center for Auto Safety v. NHTSA (CAS I), 793 F.2d 1322, 1337 (D.C.Cir.1986), in which we held that the judicial review provision of the Energy Policy and Conservation Act of 1975 (EPCA) "clearly removes the judicial authority to create prudential barriers by granting review of agency action to those 'who may be adversely affected' " by such action.

That decision is not controlling here, however. Section 702 of the Administrative Procedure Act provides for judicial review at the behest of any person "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action," 5 U.S.C. Sec. 702, and the Supreme Court has repeatedly held, both before and after CAS I, that prudential limitations apply to review of agency action under that section. See, e.g., Clarke v. Securities Industry Association, 479 U.S. 388, 394-96, 107 S.Ct. 750, 754-56, 93 L.Ed.2d 757 (1987); Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). Because RCRA specifically provides, with exceptions not here relevant, that "[a]ny judicial review of final regulations promulgated [pursuant to its terms] ... shall be in accordance with [inter alia, APA Sec. 702]," 42 U.S.C. Sec. 6976(a), the Supreme Court's interpretation of that provision is inescapably applicable to this case. Even if CAS I retains its vitality as an interpretation of EPCA despite the facial similarity of the review provisions in that statute and in the APA, that case is plainly not applicable to review of an EPA action under RCRA. Thus, prudential limitations apply to the case before us.

II. THE PRUDENTIAL STANDING TEST APPLIED

Despite the complexity it sometimes generates in application, the theory underlying prudential standing doctrine is elegant in its simplicity. At base, it proceeds from a single observation about the legislative process: Congress often fails to specify who may and who may not invoke the power of the courts to enforce the terms of a statute. It follows that the judiciary has to supply a principle by which to infer Congress's intent on that often critical question. The zone of interests test is the result. See, e.g., Clarke, 479 U.S. at 400, 107 S.Ct. at 757-58 (zone test is, "at bottom," an inquiry into congressional intent). That test requires that we ask whether a would-be challenger to agency action is pursuing an interest "arguably within the zone of interests" Congress intended either to regulate or to protect. Data Processing, 397 U.S. at 153, 90 S.Ct. at 829-30.

The fundamental, and unexceptionable, idea behind that test is a presumption that Congress intends to deny standing to "those plaintiffs whose suits are more likely to frustrate than to further statutory objectives." Clarke, 479 U.S. at 397 n. 12, 107 S.Ct. at 756 n. 12. As a general matter, there are two types of parties with the right incentives to police an agency's enforcement of the laws it administers. First, those whom the agency regulates have the incentive to guard against any administrative attempt to impose a greater burden than that contemplated by Congress. Second, those whom the agency was supposed to protect have the incentive to ensure that the agency protects them to the full extent intended by Congress. See, e.g., id. at 397, 399, 107 S.Ct. at 756, 757.

HWTC contends that it has standing both as a regulated party and as an interest group Congress sought to protect. We address these arguments in turn.

A. Regulated Interests

HWTC initially argues that the California List rule burdens its members who operate treatment facilities at least insofar as EPA has approved of solidification as a method of avoiding the limitations on land disposal of liquid wastes. As a consequence, it predicts that its members will be forced by competitive market conditions to offer solidification services to their customers, which will in turn increase the members' exposure to EPA penalties because solidification is allegedly insufficient adequately to reduce the mobility of hazardous constituents in the waste. In essence, HWTC wants EPA to prohibit its members from using this relatively low-technology treatment approach so that they can sell more of their high-technology services.

Assuming that HWTC accurately anticipates how the interplay of market forces and the regulatory regime will work out, its members still are not "regulated" in the relevant sense. "A party is 'regulated' for purposes of the 'zone' test only if it is regulated by the particular regulatory action being challenged." HWTC II, 861 F.2d at 284. It is most decidedly not "regulated" for such purposes when its challenge is based upon...