Hazardous Waste Treatment Council v. EPA
Citation: 19 ELR 20063
No. No. 86-1143, 861 F.2d 277/28 ERC 1311/(D.C. Cir., 10/07/1988)
The court upholds the Environmental Protection Agency's (EPA's) regulations under the Resource Conservation and Recovery Act (RCRA) governing the burning of hazardous waste, including used oil, as fuel. The court first holds that a trade organization composed of firms engaged in the treatment of hazardous waste has standing to challenge EPA's regulations as not being sufficiently stringent. The consumer interests represented by petitioner are entitled to standing, since the receiving facilities of a member of the organization will be injured by the receipt of contaminated used oil. That the injury is economic is no obstacle. The court holds, however, that petitioner may not assert a claim on behalf of several of its members that the asserted laxity of the regulations will diminish the market for the firms' high-technology treatment services. Such claims are outside the zone of interests protected by RCRA. Although such high-tech firms will benefit from the tightening of environmental standards, it is not clear that Congress intended standing to be conferred by this type of incidental benefit. There is no evidence of congressional intent to improve the competitive position of high-tech recyclers. The court rejects petitioner's argument that it falls within a line of Supreme Court cases conferring standing upon competitors in certain "entry-restricting" statutes. Moreover, that RCRA exposes some of the activities of petitioners' members to regulation is not a basis for prudential standing, since petitioner's aim is to increase the regulatory burden on others and its interest lies in the competitive advantage its members gain from higher costs on other firms. The court holds that petitioner has standing as the representative of a member firm's consumer interests. Although petitioner's primary interests have a different focus than the consumer interest of its member firm, the germaneness test for representative standing requires mere pertinence between the subject of the litigation and the organization's purpose. The court holds that petitioner does not have standing in its organizational capacity to challenge EPA's decision to exempt from regulation residues from burning hazardous waste fuels in mining furnaces and cement kilns. Even if the injuries alleged by petitioner satisfy the constitutional requirements for standing, petitioner has made no effort to link them to the statute.
The court holds that it does not have jurisdiction under RCRA § 7006 to review EPA's failure to regulate generators and transporters of used oil in addition to facilities that store and blend used oil. Petitioner is not challenging the promulgation or denial of a petition to EPA to promulgate any rule, but is arguing that EPA should have promulgated rules that it has not promulgated, and an agency's failure to regulate more comprehensively is not a basis for concluding that the regulations already promulgated are invalid.
Turning to the merits, the court holds that RCRA § 3004 permits EPA to apply less stringent regulations to used oil contaminated through ordinary use, even though it exhibits the characteristics of hazardous waste. Section 3004(q) requires EPA to promulgate standards for hazardous waste fuel as may be necessary to protect human health and the environment, but grants EPA considerable discretion in formulating such standards. EPA is not required to impose all the various requirements listed in § 3004(a). Moreover, EPA is authorized by RCRA § 3014(a) to regulate recycled oil, including oil that is burned, and has a mandate under this authority not to discourage the recycling of used oil. The court holds that EPA may regulate under the used oil rules small quantity generators who mix hazardous waste with used oil. Although such mixtures are normally regulated under the more stringent hazardous waste rules, EPA reasonably concluded that the burden on small generators resulting from the hazardous fuel regulations outweighed the benefits. Moreover, small quantity generators are already exempt from hazardous waste regulations; thus, such generators are subject to a more stringent regulation when they mix hazardous waste and used oil than when they do not mix. Finally, the court holds that EPA may permit the dilution of used oil with virgin oil to meet less stringent requirements. Although dilution will not decrease total emissions of the toxic constituents, Congress did not require EPA to reduce total emissions at all costs. EPA's conclusion that prohibiting dilution would increase improper disposal of used oil is supported by the record, and its rule is a proper construction of the statute in the absence of congressional direction.
Counsel for Petitioners
David R. Case, Jacqueline M. Warren
Hazardous Waste Treatment Council
1440 New York Ave. NW, Washington DC 20005
Counsel for Respondents
Brian V. Faller
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Steven E. Silverman
Office of General Counsel, Environmental Protection Agency
401 M St. SW, Washington DC 20460
Before BUCKLEY and WILLIAMS, Circuit Judges, and EDWARD D. RE,* Chief Judge, U.S. Court of International Trade.