Natural Resources Defense Council, Inc. v. U.S. E.P.A.
| Decision Date | 27 June 1994 |
| Docket Number | No. 92-1371,92-1371 |
| Citation | 25 F.3d 1063 |
| Parties | , 306 U.S.App.D.C. 357, 62 USLW 2764, 24 Envtl. L. Rep. 20,959 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Edison Electric Institute, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the United States Environmental Protection Agency.
David R. Case, argued the cause for petitioners. With him on the briefs was Eli D. Eilbott, Washington, DC. Joseph H. Guth, New York City, entered an appearance.
Eileen T. McDonough, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for respondent. With her on the brief were Lawrence E. Starfield, Asst. Gen. Counsel, and Randolph L. Hill, Atty., U.S. Environmental Protection Agency, Washington, DC.
On the joint brief for intervenors in support of respondent were G. William Frick, M. Elizabeth Cox, Toni K. Allen, Douglas H. Green, and Marianne Mancino Thiede, Washington, DC. Norman L. Rave, Jr., entered an appearance for intervenors Edison Elec. Institute, et al.
Before WALD, GINSBURG, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
This petition for review challenges a final determination of the Environmental Protection Agency ("EPA") not to list used oil destined for disposal as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Secs. 6921-6939b (1988). The agency evaluated used oil under its technical listing criteria, 40 C.F.R. Sec. 261.11, and concluded that used oils destined for disposal need not be listed as a hazardous waste because the panoply of existing federal regulations governing the management of used oil, id. Sec. 261.11(a)(3)(x), could control any plausible scenario of used oil mismanagement, id. Sec. 261.11(a)(3)(vii). Petitioners charge that this determination was inconsistent with RCRA and the agency's listing regulations. We disagree and therefore deny the petition for review.
RCRA's subtitle C, 42 U.S.C. Secs. 6921-6939b, establishes a " 'cradle-to-grave' regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste." United Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C.Cir.1987). Congress supplied only a broad definition of "hazardous waste" in RCRA, 1 delegating to EPA the task of promulgating regulations identifying the characteristics of hazardous waste and listing specific wastes as hazardous. 42 U.S.C. Sec. 6921. In accordance with this statutory command, EPA has constructed two avenues through which a waste may be designated as "hazardous." We recently explained this bipartite system:
First, EPA has published several lists of specific hazardous wastes ("listed wastes") in which EPA has described the wastes and assigned a "waste code" to each one. 40 C.F.R. Sec. 261, Subpart D. Second, EPA has identified four characteristics of hazardous wastes: ignitability, corrosivity, reactivity and ... toxicity. See 40 C.F.R. Sec. 261.20-.24. Any solid waste exhibiting one or more of these characteristics is automatically deemed a "hazardous waste" subject to Subtitle C of the RCRA even if it is not a "listed" waste.
American Petroleum Inst. v. EPA, 906 F.2d 729, 733 (D.C.Cir.1990).
In order to determine which wastes should be regulated as "listed" hazardous wastes, EPA has developed a set of listing criteria. 40 C.F.R. Sec. 261.11. In relevant part, these criteria provide:
(a) The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria (1) It exhibits any of the characteristics of hazardous waste identified in subpart C.
....
(3) It contains any of the toxic constituents listed in appendix VIII and, after considering [a set of eleven] factors, the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.
40 C.F.R. Sec. 261.11 (1993). 2
Petitioners here challenge EPA's final decision not to list used oil as a hazardous waste under these criteria. See Final Rule, 57 Fed.Reg. 21,524 (1992). This decision was years in the making. In 1984, Congress amended RCRA by passing the Hazardous and Solid Waste Amendments ("HSWA"), Pub.L. No. 98-616, 98 Stat. 3258 (1984) (now codified at 42 U.S.C. Sec. 6935 (1988)). The HSWA set specific deadlines by which EPA was required to "make a final determination whether to list or identify used automobile and truck crankcase oil and other used oil as hazardous wastes under section 6921 [of RCRA]." 42 U.S.C. Sec. 6935(b). Soon after the passage of the HSWA, EPA announced its proposal to list all used oil as a hazardous waste. See 50 Fed.Reg. 49,258 (1985). This proposal was followed by a supplemental notice requesting comments on another option: listing only used oil destined for disposal as hazardous while relying on special management standards to govern recycled used oil. 51 Fed.Reg. 8206 (1986).
In November 1986, EPA determined that it would not list recycled used oil as a hazardous waste. 51 Fed.Reg. 41,900 (1986). The agency's decision rested primarily on its perception that the stigma associated with labelling used oil as "hazardous" would discourage recycling. However, in Hazardous Waste Treatment Council v. EPA, 861 F.2d 270 (D.C.Cir.1988) ("HWTC"), we vacated EPA's no-list determination on the ground that the agency's reliance on the perceived "stigma" associated with listing was not a statutorily authorized basis for its decision. We remanded for the agency to consider whether any recycled oils met the technical criteria for listing promulgated under 42 U.S.C. Sec. 6921.
After our decision in HWTC, the agency issued a supplemental notice of proposed rulemaking in which it published information collected since the 1985 proposal regarding the toxicity of used oil and announced that it was considering three options for the regulation of used oil: 1) listing all used oil as hazardous, 2) listing only certain categories of used oil as hazardous, or 3) not listing any used oils as hazardous, but relying instead on other federal regulations, including the "characteristic" waste component of RCRA subtitle C, to ensure the proper management of used oil. See Supplemental Notice of Proposed Rulemaking, 56 Fed.Reg. 48,000, 48,019-21 (1991). On May 20, 1992, EPA announced its decision not to list any used oil destined for disposal as hazardous. 3 See Final Rule, 57 Fed.Reg. 21,524 (1992).
EPA determined that gasoline-powered engine oils do not need to be listed as hazardous wastes because most of these oils are already regulated under the characteristic waste component of subtitle C. Final Rule, 57 Fed.Reg. at 21,531. The agency further determined that other environmental regulations adequately address any additional risk posed by the plausible mismanagement of gasoline-powered engine oils. Id. With respect to the remaining oils, EPA determined that listing was not required because these used oils are not "typically and frequently" hazardous and thus did not meet the threshold requirement for listing. Id. To the extent that "[t]hose oils ... may pose a threat on disposal," the agency determined that they were also "addressed by the current regulatory framework." Id.
Petitioners, the Natural Resources Defense Council, the Hazardous Waste Treatment Council, and the Association of Petroleum Re-Refiners, challenge the EPA's no-list decision. They base their challenge on EPA's alleged noncompliance with RCRA and the agency's hazardous waste listing regulations, 40 C.F.R. Sec. 261.11(a)(1)-(3).
Petitioners' first argument focuses on the EPA's failure to list used oils produced by gasoline-powered engines as hazardous waste. Intervenors in support of the EPA, American Petroleum Institute and Edison Electric Institute, et al., argue that petitioners lack standing to raise this challenge, having failed to establish a constitutionally-cognizable injury. Intervenors assert that these used oils are already regulated under RCRA subtitle C as "characteristic wastes" and that petitioners, therefore, cannot claim any injury from EPA's failure to regulate these oils under the "listed waste" component of the same regulation. Intervenors apply too stringent a standard for the determination of standing. The question at that threshold is not whether the allegation of injury is one upon which they will ultimately fail, but merely whether it states an injury cognizable in an Article III court. To establish an injury for standing purposes, a petitioner must show "a distinct and palpable injury to himself; that this injury is caused by the challenged activity; and that this injury is apt to be redressed by a remedy that the court is prepared to give." CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE Sec. 3531.4 at 418 (1984). Petitioners have alleged that "some of its members live in communities subject to incidents resulting from mismanagement of used oil." HWTC, 861 F.2d at 273. To the extent that there may be differences between regulation under the "characteristic waste" and "listed waste" components of subtitle C (for example in enforcement procedures) petitioners' alleged injury is arguably traceable to the EPA's failure to list used oils as a hazardous waste. See id. Though we ultimately determine that petitioners have not established a right to relief, that does not mean that they have not alleged a cognizable injury sufficient...
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