Sierra Club v. E.P.A., No. 01-1057.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGinsburg
Citation292 F.3d 895
PartiesSIERRA CLUB and Environmental Technology Council, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. American Chemistry Council, et al., Intervenors.
Decision Date18 June 2002
Docket NumberNo. 01-1057.
292 F.3d 895
SIERRA CLUB and Environmental Technology Council, Inc., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent.
American Chemistry Council, et al., Intervenors.
No. 01-1057.
United States Court of Appeals, District of Columbia Circuit.
Argued January 11, 2002.
Decided June 18, 2002.

Page 896

On Petition for Review of a Rule of the Environmental Protection Agency.

David R. Case argued the cause and filed the briefs for petitioners.

G. Scott Williams, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were John C. Cruden, Deputy Assistant Attorney General, and Alan Carpien, Attorney, U.S. Environmental Protection Agency.

David F. Zoll, Leslie A. Hulse, G. William Frick, Ralph J. Colleli, Douglas H. Green and Steven J. Groseclose were on the brief for intervenors.

Before: GINSBURG, Chief Judge, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:


The Environmental Protection Agency promulgated a rule to establish the conditions under which it would consider certain wastewater treatment sludges "hazardous" within the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. See Hazardous Waste Mgmt. Sys., 65 Fed. Reg. 67068 (Nov. 8, 2000) (Chlorinated Aliphatics Rule). The Sierra Club and the Environmental Technology Council challenge the rule as unreasonable and as inconsistent with the plain meaning of the RCRA. Because neither of the petitioners has standing to seek review, we dismiss their petition.

I. Background

The RCRA establishes a comprehensive regulatory framework for the handling and disposal of "solid waste," including "any garbage, refuse, [or] sludge from a waste treatment plant." 42 U.S.C. § 6903(27). The Act further defines as "hazardous waste" the subset of solid waste that (for specified reasons) may

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

Id. § 6903(5). Subtitle C of the RCRA, 42 U.S.C. §§ 6921-34, establishes "a stringent `cradle-to-grave' regulatory structure overseeing the safe treatment, storage and disposal of hazardous waste." Military Toxics Project v. EPA, 146 F.3d 948, 950

Page 897

(D.C.Cir.1998). Solid waste that is not deemed hazardous is "regulated much more loosely" under subtitle D of the Act, 42 U.S.C. §§ 6941-49. City of Chicago v. EDF, 511 U.S. 328, 331, 114 S.Ct. 1588, 1590, 128 L.Ed.2d 302 (1994).

Under the Agency's established criteria "for identifying the characteristics of hazardous waste," 42 U.S.C. § 6921(a), a waste is "listed" as hazardous if it: (1) "exhibits any of the characteristics of hazardous waste"; (2) "has been found to be fatal to humans [or, if data for humans are not available, then to rats] in low doses"; or (3) contains a substance the Congress has designated a "toxic constituent" capable of causing harm when improperly managed or stored. 40 C.F.R. §§ 261.11(a)(1-3). The last criterion entails a risk assessment in order to determine whether the constituent is in fact "capable of posing a substantial present or potential hazard to human health or the environment." Id. § 261.11(a)(3).

In 1984 the Congress directed the EPA to determine whether the byproducts of chlorinated aliphatics should be listed as hazardous pursuant to the Agency's criteria. See 42 U.S.C. § 6921(e)(2). The EPA found that the production of certain chlorinated aliphatics, including ethylene dichloride and vinyl chloride monomer (EDC/VCM), generates a wastewater treatment sludge containing two "toxic constituents," arsenic and dioxin, in amounts that could endanger the public health if managed or disposed of improperly. See Chlorinated Aliphatics Rule, 65 Fed. Reg. at 67072/1, 67089. The Agency concluded that although the sludge "posed a substantial hazard to human health and the environment when managed in a land treatment unit, [it] did not pose this hazard when managed in a landfill." Id. at 67097/1.

Having determined that EDC/VCM sludge threatens human health and the environment under certain conditions, the EPA "conditionally listed" the sludge as a hazardous waste. See id. at 67088/3. More specifically, the Agency determined that the wastewater sludges generated during the production of EDC/VCM are hazardous, and therefore must be handled in accordance with subtitle C of the RCRA, unless:

(i) they are disposed of in a subtitle C or non-hazardous landfill licensed or permitted by the state or federal government;

(ii) they are not otherwise placed on the land prior to final disposal; and

(iii) the generator maintains documentation demonstrating that the waste was either disposed of in an onsite landfill or consigned to a transporter or disposal facility that provided a written commitment to dispose of the waste in an off-site landfill.

Id. at 67088-89.

There are fourteen facilities, all located in Louisiana and Texas, that generate EDC/VCM sludge. Ten of the facilities send their sludge to landfills for disposal; two treat the sludge on site — that is, they attempt to detoxify it and recycle its components — and two dispose of it as required by subtitle C. The rule under review, therefore, requires only the two facilities that presently treat their sludge to change their method of storing and disposing of the substance, either by placing it in a landfill or by complying with the stringent directives of subtitle C.

The Sierra Club and the Environmental Technology Council — formerly known as the Hazardous Waste Treatment Council — petitioned for review of the Rule. The American Chemistry Council, the American Petroleum Institute, the Utility Solid Waste Activities Group, the Edison Electric Institute, the American Public Power Association, the National Rural

Page 898

Electric Cooperative Association, and the American Gas Association have intervened to defend the Rule.

II. Standing

The Sierra Club and the ETC argue that the conditional listing of EDC/VCM sludge cannot be squared with the land disposal restrictions in the Act; the Chlorinated Aliphatics Rule is based upon an untenable interpretation of the RCRA; and the Rule is arbitrary and capricious in substance. The EPA and the intervenors respond first by arguing that the court does not have jurisdiction over the petition because the Sierra Club and the ETC respectively lack constitutional and prudential standing. We consider the standing issues, mindful of our independent obligation to be sure of our jurisdiction. See High Plains Wireless, L.P. v. FCC, 276 F.3d 599, 607 (D.C.Cir.2002).

A. The Sierra Club

Under Article III of the Constitution of the United States, an association, such as the Sierra Club, has standing to sue on behalf of its members only if (1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 2440-41, 53 L.Ed.2d 383 (1977). The EPA and the intervenors do not argue, nor do we have any reason to believe, that the Sierra Club fails to satisfy the latter two requirements.

The issue before the court, then, is whether at least one member of the Sierra Club has standing under Article III. The "irreducible constitutional minimum of standing contains three elements": (1) injury-in-fact, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). For the first element, the Sierra Club must show "that EPA's alleged failings have caused a traceable `concrete and particularized' harm to their members that is `actual or imminent.'" American Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000) (quoting Louisiana Envtl. Action Network v. EPA, 172 F.3d 65, 71 (D.C.Cir.1999) (LEAN)) The organization need not prove the merits of its case — "i.e., that localized harm has in fact resulted from a federal rulemaking" — in order to establish its standing, but it "must demonstrate that there is a `substantial probability' that local conditions will be adversely affected" and thereby injure a member of the organization. Id. (quoting LEAN, 172 F.3d at 68).

In reply to the suggestion in the EPA's brief that it does not have standing, the Sierra Club duly avers that some of its members "live, work, and recreate in communities adversely affected by the chemical plants that produce, store, and transport the EDC/VCM sludge, as well as [by] the on-site and off-site landfills used for sludge disposal," and it claims that "there is a substantial probability that improper management and disposal of EDC/VCM sludge will cause harm" to its members in the vicinity of those facilities and landfills. Bare allegations are insufficient, however, to establish a petitioner's standing to seek judicial review of administrative action.

As the Supreme Court explained in Defenders of Wildlife, the burden of production a plaintiff must bear in order to show it has standing to invoke the jurisdiction of the district court varies with the procedural context of the case. At the...

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