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Hazardous Waste Treatment Council v. EPA

Citation: 19 ELR 20059
No. Nos. 86-1658 et al., 861 F.2d 270/28 ERC 1305/(D.C. Cir., 10/07/1988)

The court holds that the Environmental Protection Agency (EPA) improperly decided not to list used oil destined for recycling as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). EPA originally had determined that used oil typically contains significant quantities of hazardous contaminants that warrant its listing under RCRA. Such a listing would not subject generators and transporters of used oil to regulations ordinarily applicable to hazardous waste, if the oil was recycled. The Agency subsequently decided not to list recycled oil, due to concerns raised by used oil recyclers that the listing would attach the stigma of the label "hazardous waste" to recycled oil, thus discouraging recycling and encouraging illegal disposal. The court first holds that the environmental petitioner has standing to sue. Petitioner has suffered injury-in-fact, since it has members who live in communities that have suffered environmental damages as a result of the mismanagement of used oil. These damages are fairly traceable to EPA's failure to regulate used oil, and are likely to be redressed by a favorable judgment. The interest in environmental protection is clearly germane to the organization's purpose, and a request to set aside EPA's decision does not require participation of the group's members. Since one petitioner has standing, the court declines to review the standing of the other petitioners.

The court then holds that EPA's decision not to list used oil as a hazardous waste was not in accordance with law under the Administrative Procedure Act. The court rules that EPA may only consider the criteria specified in RCRA § 3001 when deciding whether to list used oil. Since "stigma" is not listed as a criterion in § 3001, the court holds, EPA may not rely on it as a factor. EPA's reliance on the Used Oil Recycling Act (UORA), which required EPA to determine the applicability to used oil of the regulatory criteria for hazardous waste and to report that determination to Congress, is misplaced, since the Agency's mandate under the UORA to ensure that used oil recycling is not discouraged expired with submission of the report to Congress. The court holds that EPA's construction of the UORA with respect to recycled oil is inconsistent with the statute. Although the Act allows EPA to regulate recycled oil without listing it as a hazardous waste, Congress separated the listing decision from subsequent decisions on how to regulate the oil. Only after EPA decides to list does the UORA permit the Agency to consider the effects of its regulations on recycling. Congress did not intend for EPA to have the same authority when regulating recycled oil without listing as when it regulates with such a listing. The statutory provision for the latter gives EPA more guidance for regulation than that contained in the provision for the former, and the enforcement provisions were originally different. The tax consequences of the two regulatory schemes were also different. The court holds that EPA must now determine whether any recycled oils meet the technical criteria for listing specified in RCRA § 3001.

Counsel for Petitioner
David B. Case
Hazardous Waste Treatment Council
1440 New York Ave. NW, Washington DC 20005
(202) 783-0870

Counsel for Respondents
Steven E. Silverman
Office of General Counsel, Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Brian V. Faller
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2308

Before BUCKLEY and WILLIAMS, Circuit Judges, and EDWARD D. RE,* Chief Judge, U.S. Court of International Trade.