Waste Management of Illinois, Inc. v. U.S. E.P.A., 89-1297

• Decision Date: 24 September 1991
• Docket Number: No. 89-1297,89-1297
• Citation: 945 F.2d 419
• Parties: , 292 U.S.App.D.C. 28 WASTE MANAGEMENT OF ILLINOIS, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 419

945 F.2d 419

34 ERC 1094, 292 U.S.App.D.C. 28

WASTE MANAGEMENT OF ILLINOIS, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.

No. 89-1297.

United States Court of Appeals,District of Columbia Circuit.

Decided Sept. 24, 1991.

Rehearing Denied Dec. 6, 1991.

Richard B. Stewart, Asst. Atty. Gen., U.S. Dept. of Justice, Joseph Freedman, Atty., E.P.A., and Kaye Allison, Washington, D.C., Attorney, Dept. of Justice, were on the motion to dismiss.

Angus Macbeth and Peggy L. O'Brien, Washington, D.C., were on the response to the motion to dismiss.

Before BUCKLEY, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed PER CURIAM.

ON MOTION TO DISMISS

PER CURIAM:

The petitioner, Waste Management of Illinois ("WMI"), challenges the validity of an Environmental Protection Agency ("EPA") regulation promulgated in 1980 under the Resource Conservation and Recovery Act ("RCRA"). See 42 U.S.C. §§ 6901 et seq. The regulation, 40 C.F.R. § 271.19(a), authorizes a regional EPA administrator to review state hazardous waste permit applications and to institute enforcement proceeding against the holders of such permits. The EPA moves to dismiss on the ground that WMI's challenge is untimely because not brought within ninety days after the regulation was promulgated, as required by statute. WMI seeks to excuse its untimeliness claiming reliance on the settlement of a previous challenge to the regulation in which the EPA and various other parties stipulated that the challenge was unripe. We hold that WMI's reliance on the settlement agreement does not excuse its failure to challenge the regulation within the time limits prescribed by Congress. We therefore grant the respondent's motion to dismiss the petition as untimely.

I.

RCRA provides a comprehensive federal program for the management of hazardous waste. See Hazardous Waste Treatment Council, v. Reilly, 938 F.2d 1390 (D.C.Cir.1991). Under RCRA, a permit must be obtained before any person may operate a facility for the disposal of hazardous waste. See 42 U.S.C. § 6925. RCRA permits states to establish their own hazardous waste programs, in lieu of the federal program, after obtaining EPA approval. See 42 U.S.C. § 6926(b). After a state program has been approved, any action taken by the state "shall have the same force and effect as action taken by the Administrator under this subchapter." 42 U.S.C. § 6926(d). When an approved state hazardous waste program is in effect, the EPA may nonetheless issue its own enforcement orders or institute a civil action to remedy a RCRA violation after notifying the state. See 42 U.S.C. § 6928(a)(1)-(3).

The regulation at issue was promulgated on May 19, 1980. Under the regulation, a regional EPA administrator may comment on a permit application or draft permit issued under an approved state program. See 40 C.F.R. § 271.19(a). The regulation also confers authority on a regional EPA administrator to institute an action against a state-issued permit holder for non-compliance with any condition the regional administrator deems necessary to implement authorized state program requirements. Id. § 271.19(e).

The validity of this and several other regulations was challenged in Natural Resources Defense Council, Inc. v. EPA, Nos. 80-1607 et al., (D.C.Cir. filed June 2, 1980). Among the intervenors in that proceeding was the National Solid Waste Management Association ("NSWMA"), of which WMI is a member. On November 16, 1981, a settlement was reached in which the EPA and other parties, including NSWMA, stipulated that the regulation was not ripe for review. The settlement agreement contains the following language:

Issue 21, insofar as it involves EPA's authority to enforce State program requirements not included in State-issued RCRA permits, is not ripe for review in this litigation and if a permittee who is represented in this litigation later raises this issue in a civil or criminal enforcement proceeding, EPA will not object on the ground that the issue could have been raised in this litigation.

Respondent's Memorandum in Support of Motion to Dismiss, Addendum A at 2-3.

In January, 1986, the EPA approved a hazardous waste program developed by the State of Illinois. Pursuant to this approval, on May 22, 1987, the Illinois Environmental Protection Agency ("IEPA") issued a draft Part B RCRA permit for a hazardous waste disposal facility owned and operated by WMI and known as "CID." The draft permit required WMI to monitor the groundwater at two aquifers underlying the facility. The draft permit was submitted for comment to the EPA, which concluded that the draft permit complied with authorized state program requirements.

Approximately six months later, the EPA became aware that the terms of the draft permit had been modified and requested an opportunity to comment on the revision. After again reviewing the draft permit, on January 25, 1988, the EPA sent the IEPA a letter indicating that the groundwater monitoring requirements were inconsistent with authorized state program requirements and listing the conditions the permit had to include to ensure compliance. The letter further indicated that the EPA might institute enforcement proceedings if the conditions were not incorporated in the permit or if WMI failed to comply with the conditions. The IEPA responded to the letter but failed to incorporate the conditions into the final permit, which it issued on March 4, 1988.

On March 31, 1988, WMI instituted an action against the EPA in the United States District Court for the Northern District of Illinois, claiming, inter alia, that the EPA lacked authority to impose any conditions beyond those contained in the final permit issued by the IEPA. See Waste Management of Illinois, Inc. v. EPA, 714 F.Supp. 340, 344 (N.D.Ill.1989). The Illinois district court, however, declined to address WMI's claims. Characterizing WMI's complaint as an attack on the validity of 40 C.F.R. § 271.19(a), that court held that exclusive jurisdiction lies with the United States Court of Appeals for the District of Columbia Circuit. See Waste Management, 714 F.Supp. at 346. Accordingly, it transferred the case to this court pursuant to 28 U.S.C. § 1631. The EPA now moves to dismiss the action on the ground that WMI's challenge to the validity of the regulation is untimely.

II.

In order to obtain judicial review of a regulation promulgated under RCRA, a petition for review must be filed in this court within ninety days of the promulgation of the regulation. See 42 U.S.C. § 6976(a)(1). WMI does not dispute that its petition challenges the validity of 40 C.F.R. § 271.19 and thus must be brought under 42 U.S.C. § 6976(a)(1). Rather, WMI contends that the ninety-day requirement has been either met or waived for the following reasons. First, WMI asserts it made a timely request for review based upon NSWMA's intervention in the 1980 litigation. Alternatively, WMI argues that even if it did not challenge section 271.19 in a timely fashion, other similarly situated parties filed timely petitions and entered into the 1980 settlement agreement containing the ripeness provision. Citing Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 914 (D.C.Cir.1985), WMI contends that it is similarly situated to those petitioners who timely challenged the regulation in 1980 and is thus entitled to rely on the determination that the regulation was not ripe for review....