Wyckoff Co. v. E.P.A.

• Decision Date: 14 August 1986
• Docket Number: No. 85-3518,85-3518
• Parties: , 55 USLW 2127, 16 Envtl. L. Rep. 20,866 WYCKOFF COMPANY, Plaintiff-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY, the United States of America, and the Washington State Department of Ecology, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1197

796 F.2d 1197

24 ERC 1809, 55 USLW 2127, 16 Envtl.

L. Rep. 20,866

WYCKOFF COMPANY, Plaintiff-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY, the United States of America, and the Washington State Department of Ecology, Defendants-Appellees.

No. 85-3518.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 12, 1986.

Decided Aug. 14, 1986.

Marvin B. Durning, Seattle, Wash., for plaintiff-appellant.

Robert L. Klarquist, Dept. of Justice, Washington, D.C., Jeffrey D. Goltz, Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE and THOMPSON, Circuit Judges, and STEPHENS, ^* District Judge.

WALLACE, Circuit Judge:

Wyckoff Company (Wyckoff) brought an action for a judgment declaring that the Environmental Protection Agency (EPA) was without authority to issue two orders requiring Wyckoff to submit written proposals for the monitoring, testing, analysis, and reporting of hazardous wastes at two of Wyckoff's facilities. The district court denied Wyckoff's motion for a preliminary injunction restraining the EPA from enforcing those orders. We have jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1), and we affirm.

I

Wyckoff owns and operates two wood treatment plants at which it uses hazardous chemicals as wood preservatives and stores hazardous wastes. Both plants are in the State of Washington. The EPA found that hazardous materials at one site had seeped into the surrounding soil, the groundwater, and into Puget Sound. At the other site, hazardous wastes had entered the surrounding soil, and likely the groundwater as well. The EPA determined that the storage and release of hazardous wastes at each of these facilities "may present a substantial hazard to human health or the environment." It issued orders requiring Wyckoff to submit written proposals for monitoring, testing, analysis, and reporting of the hazardous waste at the facilities.

II

To obtain preliminary relief, the moving party must make a clear showing of either " '(1) probable success on the merits and possible irreparable injury or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.' " Lydo Enterprises v. City of Las Vegas, 745 F.2d 1211, 1212 (9th Cir.1984) (Lydo), quoting Ebel v. City of Corona, 698 F.2d 390, 392 (9th Cir.1983) (emphasis in original); see Wilson v. Watt, 703 F.2d 395, 399 (9th Cir.1983). These articulations of the required showing do not express two separate tests, but are " 'merely extremes of a single continuum.' " Lydo, 745 F.2d at 1212, quoting Benda v. Grand Lodge of Int'l Ass'n of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). A weighing of the public interest is particularly important in cases, such as the one before us, where the public health and welfare may depend on unhindered enforcement of a federal environmental statute. See United States v. Akers, 785 F.2d 814, 823 (9th Cir.1986); California v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1324 (9th Cir.1985).

We review a district court's denial of a preliminary injunction for abuse of discretion. Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752 (9th Cir.1982). To determine whether there has been an abuse of discretion we " 'must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Id., quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Thus, we will not substitute our own judgment for that of the district court. Id. Nevertheless, a district court's denial of preliminary relief may be reversed if the court "misapprehends the law with respect to the underlying issues in litigation." Id.

Wyckoff contends that the district court's misapprehension of the law was the basis for its denial of relief in this case. We must consider whether the district court misconstrued the relevant statutory provisions in concluding that Wyckoff had little chance of success on the merits.

III

The Resource Conservation and Recovery Act (Act), 42 U.S.C. Sec. 6901 et seq., was enacted to protect the national health and environment. See 42 U.S.C. Secs. 6901, 6902. The Act confers on the Administrator of the EPA broad powers to regulate the storage, treatment, transportation, and disposal of potentially hazardous materials. See 42 U.S.C. Sec. 6912(a). The EPA orders that Wyckoff challenges were issued in August 1984 pursuant to section 3013 of the Act, which provides:

If the Administrator determines, upon receipt of any information, that--

(1) the presence of any hazardous waste at a facility or site at which

hazardous waste is, or has been, stored, treated, or disposed of, or

(2) the release of any such waste from such facility or site

may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable to ascertain the nature and extent of such hazard.

42 U.S.C. Sec. 6934.

Wyckoff does not allege that there was any error in the Administrator's interpretation of the terms of section 3013, or in the Administrator's evaluation of the facts in this case. Instead, Wyckoff contends that section 3013 did not apply in the State of Washington at the time the orders were issued, because federal regulation under the Act had been superseded by the implementation of a federally approved state regulatory program under section 3006 of the Act. 42 U.S.C. Sec. 6926 (1982). ¹

Section 3006 provides for federal authorization of state hazardous waste programs. 42 U.S.C. Sec. 6926 (1982). The Administrator may refuse to authorize a state program if he timely finds that "(1) such State program is not equivalent to the Federal program under this subchapter, (2) such program is not consistent with the Federal or State programs applicable in other States, or (3) such program does not provide adequate enforcement of compliance with the requirements of this subchapter." 42 U.S.C. Sec. 6926(b) (1982). If authorization is not properly denied, the "State is authorized to carry out [its hazardous waste program] in lieu of the Federal program ... and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste." Id. States may also request, and receive from the Administrator, "interim authorization" to carry out a hazardous waste program:

The Administrator shall, if the evidence submitted shows the existing State program to be substantially equivalent to the Federal program under this subchapter, grant an interim authorization to the State to carry out such program in lieu of the Federal program pursuant to this subchapter....

42 U.S.C. Sec. 6926(c) (1982). Any action taken by the state under an authorized program "shall have the same force and effect as action taken by the Administrator under this subchapter." 42 U.S.C. Sec. 6926(d) (1982). The Administrator retains power, after a public hearing, to revoke the authorization of any state program not operated in accordance with the requirements of federal hazardous waste law. 42 U.S.C. Sec. 6926(e) (1982).

At the time the Administrator issued the section 3013 orders to Wyckoff, the State of Washington operated a state hazardous waste program that had received interim authorization from the Administrator, pursuant to section 3006(c). During the course of judicial proceedings, the state program has qualified as an authorized program under section 3006(b).

IV

Wyckoff argues that because section 3006 authorizes state programs to be carried out "in lieu of the Federal program," Congress intended to revoke the EPA's power to issue orders under section 3013 where an authorized state program is in effect. The linchpin of Wyckoff's argument is that the term "program" in section 3006 encompasses "the sum of the hazardous waste management authorities and activities described anywhere in subtitle C" of the Act, including section 3013. In short, Wyckoff contends that the EPA's power under section 3013 constitutes part of the "Federal program" that is supplanted by an authorized state program under section 3006. Wyckoff concludes that the Administrator thus lacked power to issue the challenged orders.

A.

In reviewing an agency's construction of a statute that it administers, we must first address

whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, .... the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted) (Chevron ). If the EPA's interpretation of section 3006 is reasonable, "[w]e must defer to the agency's interpretation even if the agency could also have reached another reasonable interpretation, or even if we would have reached a different result had we construed the statute initially." Washington v. United States EPA, 752 F.2d 1465, 1469 (9th Cir.1985) (Washington ); see Chevron, 467 U.S. at 843-45, 104 S.Ct. at 2782-83; Train v. Natural Resources Defense Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731 (1975).

We can discern no clear congressional intent that section 3006 be read to disable the EPA from issuing orders under section 3013...