Petro-Chem Processing, Inc. v. E.P.A., PETRO-CHEM

• Decision Date: 31 October 1988
• Docket Number: Nos. 87-1487,PETRO-CHEM,87-1548 and 88-1177,87-1548,s. 87-1487
• Citation: 866 F.2d 433
• Parties: , 275 U.S.App.D.C. 232, 19 Envtl. L. Rep. 20,534 PROCESSING, INC., Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 433

866 F.2d 433

28 ERC 1761, 275 U.S.App.D.C. 232, 19

Envtl. L. Rep. 20,534

PETRO-CHEM PROCESSING, INC., Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 87-1487, 87-1548 and 88-1177.

United States Court of Appeals District of Columbia Circuit.

Nos. 87-1487, 87-1548 Argued Oct. 31, 1988.

No. 88-1177 Argued Nov. 1, 1988.

Decided Jan. 13, 1989.

Ridgway M. Hall, Jr. and Richard G. Stoll, with whom Barbara A. Myers and R. Timothy McCrum were on the joint brief for the petitioners in Nos. 87-1487 and 87-1548. David B. Graham, Washington, D.C., also entered an appearance for petitioner in No. 87-1487.

David R. Case, for petitioner in No. 88-1177.

Scott A. Schachter, Atty., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., Dept. of Justice, and Caroline H. Wehling, Atty., E.P.A., were on the brief, for respondent in Nos. 87-1487 and 87-1548.

Lisa F. Ryan, Atty., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., Dept. of Justice, Lawrence Jensen, General Counsel, Frederic D. Chanania, Washington, D.C., and Nandan Kenkeremath, Attys., E.P.A., were on the brief, for respondent in No. 88-1177.

Charles F. Lettow, McLean, Va., Matthew D. Slater, Washington, D.C., and R. Kinnon Goleman, were on the brief for amicus curiae, urging dismissal of petition in No. 88-1177.

Before RUTH BADER GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Petitioners Hazardous Waste Treatment Council (HWTC) and Petro-Chem Processing, Inc., in Nos. 87-1847 and 87-1548, challenge an Environmental Protection Agency (EPA or Agency) time-extension decision; the challenged decision enlarged by more than three years the deadline for "big city" cement kilns to apply for "interim status," which would allow them to burn liquid hazardous waste without a permit. Petitioners also challenge a decision of the Agency that would allow St. Mary's Peerless Cement Company, a big city cement kiln in Detroit, to qualify for interim status despite St. Mary's alleged failure to meet the deadline for filing the requisite "Notification of Hazardous Waste Activity." Petitioners assert that these Agency actions violate the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Secs. 6901-6991i (1982 & Supp. IV 1986), which establishes a comprehensive scheme to regulate hazardous wastes, the Administrative Procedure Act, 5 U.S.C. Secs. 551-559, 701-706 (1982), and the EPA's own regulations. Petitioner HWTC, in No. 88-1177, ¹ challenges EPA regulations authorizing for the first time the disposal of hazardous waste in salt domes, salt bed formations, underground mines, and caves. HWTC asserts that these regulations are incompatible with RCRA. Bound by this court's recent decision in Hazardous Waste Treatment Council v. EPA, 861 F.2d 277 (D.C.Cir.1988), reh'g en banc denied (Dec. 20, 1988) (HWTC II ), we dismiss these petitions on the ground that the challengers lack standing to pursue judicial review.

I. COMPETITOR CLAIMS

In their initial briefs, filed before the opinion in HWTC II, 861 F.2d 277, issued, petitioners' standing arguments tracked those advanced and rejected in HWTC II. HWTC is a national trade organization of firms engaged in the treatment of hazardous waste and the manufacture of equipment for that purpose; the organization alleged that it had standing as a representative of its member companies under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (recognizing organizational standing based on injuries to members if the interests of those members are germane to the organization's purpose and if the participation of individual members is not required). Petro-Chem alleged injury on its own behalf.

In Nos. 87-1487 and 87-1548, HWTC alleged that its members would sustain competitive and economic injury because of EPA's extension of the interim status deadline, 52 Fed.Reg. 34,779 (1987) (notice of extension of compliance date), and the Agency's grant of interim status to St. Mary's. Specifically, HWTC asserted that In No. 88-1177, HWTC alleged that its members would suffer injury from (1) EPA's determination, 52 Fed.Reg. 46,946, 46,953 (1987) (preamble to final rule), to allow the disposal of hazardous wastes into salt domes, underground caves, and mines, through an "injection well," with only a RCRA "permit-by-rule" under 40 C.F.R. Sec. 270.60(b), and (2) EPA's definition of "miscellaneous unit," 52 Fed.Reg. 46,963 (1987) (to be codified at 40 C.F.R. Sec. 260.10), to include salt domes, mines, and caves, thereby allowing the disposal of hazardous waste into such geologic repositories, by means other than an injection well, subject only to the general performance standard of subpart X, 52 Fed.Reg. 46,964-65 (1987) (to be codified at 40 C.F.R. Sec. 264.601), and not to any specific technical standards. These EPA actions, allegedly in violation of RCRA section 3004(b)(2), 42 U.S.C. Sec. 6924(b)(2) (Supp. IV 1986), would, according to HWTC, lead to the diversion of hazardous wastes into geologic repositories and thus allow competitors using these cheaper disposal methods to gain business at the expense of HWTC members. Reply Brief of Petitioner at 4 (No. 88-1177).

St. Mary's and other new entrants would avoid many of the costs and the waiting period involved in obtaining a permit and would reduce the supply of hazardous waste available to HWTC's members, thus depriving them of revenue. Joint Brief of Petitioners at 8-9, 43-46 (Nos. 87-1487, 87-1548). Petro-Chem is a Detroit company that blends hazardous waste fuels for burning in industrial furnaces such as cement kilns; Petro-Chem alleged that St. Mary's entry into the market would reduce Petro-Chem's supply of hazardous waste and its blending revenue because St. Mary's fuel would be processed by a competing blending operation. Id. at 10, 62-63.

HWTC II, 861 F.2d 277, held, however, that the prudential requirement for standing under RCRA was not met by HWTC's allegations that lax regulation of competitors would cause economic harm to HWTC members. In that case, HWTC sought review of EPA's prescription, 50 Fed.Reg. 49,164 (1985), excluding from the hazardous waste fuel regulations some used oil that has acquired the characteristics of hazardous waste. HWTC charged that the exclusion violated RCRA. The HWTC II, 861 F.2d 277, panel held that HWTC's members' interest in stricter regulation of their competitors fell outside the zone of interests Congress intended to protect in enacting RCRA. Firms concerned about regulatory laxity, such as those represented by HWTC, the court said, lacked standing "[i]n the absence of any suggestion either of congressional intent to improve the competitive position of high tech recyclers, or of any reason to picture such firms as suitable challengers of the agency." HWTC II, 861 F.2d at 284. Neither condition, the court concluded, was met by HWTC members. The court discerned no congressional intent to improve the competitive position of high tech recyclers. Nor did it see any reason to regard such firms as "suitable challengers" of the Agency's action. ²

On October 13, 1988, six days after HWTC II, 861 F.2d 277, issued, we requested At oral argument, HWTC attempted to distinguish the legislative design of the provisions at issue in these cases from the congressional intent found in HWTC II, 861 F.2d 277. To this purpose, HWTC attached to Petitioner HWTC's Response to EPA's Motion to Strike Affidavit of Adolph B. Chilek (No. 88-1177) an "Addendum of Legislative History on Congressional Intent to Benefit the Hazardous Waste Treatment Industry." The legislative history thus cited by HWTC, ³ however, merely confirms "Congress's indisputable intent to encourage proper disposal and recycling of hazardous wastes." HWTC II, 861 F.2d at 283. That leitmotif, HWTC II settled, does not amount to evidence either of "congressional intent to improve the competitive position of high tech recyclers, or of any reason to picture such firms as suitable challengers" of Agency departures from Congress's ultimate goals. Id. at 284. Petitioners cannot so easily avoid the reach of HWTC II, nor can this panel; ruling in fidelity to that decision, we hold that petitioners' claims here fail to meet the prudential standing requirement.

supplemental briefing on prudential standing in these cases. In their supplemental briefs, petitioners argued that HWTC II, 861 F.2d 277, was wrongly decided and indicated HWTC's intention to request rehearing en banc. Petitioner HWTC Supplemental Brief at 1-7 & n. 1 (No. 88-1177); Supplemental Brief of Petitioners at 1-6 & n. 1 (Nos. 87-1487, 87-1548). This court denied rehearing en banc in HWTC II, 861 F.2d 277, on December 20, 1988. HWTC II thus remains the law of the circuit; therefore petitioners' arguments attacking that decision are unavailing.

II. DIRECT ENVIRONMENTAL CLAIMS

The HWTC II, 861 F.2d 277, court did find standing for the organization as representative of one member firm; that firm, HWTC alleged, was injured as a "consumer" of the oil subject to the challenged regulations. HWTC asserted that the firm's facilities for receiving used oil are injured by adulterated or contaminated used oils, and that it is expensive to test every tankload. HWTC II, 861 F.2d at 281. More stringent EPA regulations would tend to protect against this sort of injury.

HWTC's charter states that it aims, among other things, to "promote the protection of the environment through the adoption of environmentally sound practices and methods of destroying and treating hazardous wastes." Id. 861 F.2d at 285-86. The court in HWTC II had "no doubt of [HWTC's] bona fides" and held that the member firm's consumer interest was germane to the environmental organizational...