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Petro-Chem Processing, Inc. v. EPA

Citation: 19 ELR 20534
No. Nos. 87-1487 et al., 866 F.2d 433/28 ERC 1761/(D.C. Cir., 01/13/1989)

The court holds that a trade organization of hazardous waste treatment firms and a member company lack standing to challenge the Environmental Protection Agency's (EPA's) decisions to extend a deadline under the Resource Conservation and Recovery Act (RCRA) and to authorize disposal of hazardous waste in underground salt formations and caves. Both plaintiffs challenged EPA's decision to extend by three years the deadline for "big city" cement kilns to apply for interim status under RCRA, which would allow them to burn liquid hazardous waste without a permit. The organization claimed that its members would sustain competitive and economic injury as a result of the deadline extension in that new entrants into the industry would avoid much of the waiting period involved in obtaining a permit and would reduce the supply of hazardous waste available to the organization's members; the individual plaintiff alleged that a competitor's entry into the market would reduce the supply of waste available to it. In a separate action, the trade organization challenged EPA regulations authorizing for the first time the disposal of hazardous waste in salt domes, salt bed formations, underground mines, and caves. The organization alleged that the regulations would allow competitors to use the cheaper method of geologic disposal, thus gaining business at the expense of the organization's members.

The court first holds that plaintiffs' competitive claims fail to meet the prudential standing requirement. The court earlier held, in Hazardous Waste Treatment Council v. Environmental Protection Agency, 19 ELR 20063, that the prudential requirement for standing under RCRA was not met by this same organization's claims that lax regulation of competitors would cause economic harm to its members. As in that case, there is no evidence of congressional intent in RCRA to improve the competitive position of high-tech recyclers, nor is there any reason to regard such firms as suitable challengers to EPA's actions. Additional legislative history provided by the organization in an attempt to distinguish this case from the earlier one proves only that Congress intended to encourage proper disposal and recycling of hazardous wastes, not that it intended to improve the competitive position of the organization's members. The court holds that affidavits of two individual members of the organization are time-barred and thus the organization does not have standing to represent the individuals' consumer environmental interests. Although the earlier decision held that a member's consumer interest was germane to plaintiff's organizational goal of protecting the environment through the adoption of environmentally sound disposal practices, the two individuals became members of the organization more than 90 days after the cement kiln deadline was extended and the challenged regulation was filed. Both individuals would thus be time-barred by RCRA § 7006(a)(1) if they had asserted claims in their own right at the time the organization had asserted its representational claim, and an organization's standing depends on its members' standing to sue in their own right. Finally, the court holds that EPA's alleged lax regulation of hazardous waste disposal in salt domes does not provide a basis for the organization's standing. The injury plaintiff alleges is the potential for strict liability under the Comprehensive Environmental Response, Compensation, and Liability Act, which plaintiff's members would face if they began to use geologic repositories to prevent economic losses to their competitors and those allegedly unsafe repositories leaked. The court holds that this potential liability is not fairly traceable to EPA's regulation, since the actions leading to it would be undertaken voluntarily by plaintiff's members.

Counsel for Petitioners
Ridgway M. Hall Jr.
Crowell & Moring
1101 Pennsylvania Ave. NW, Washington DC 20004-2505
(202) 624-2500

Richard G. Stoll
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave., Ste. 825, Washington DC 20036-5366
(202) 457-5100

David R. Case
Hazardous Waste Treatment Council, Inc.
1440 New York Ave. NW, Washington DC 20005
(202) 783-0870

Counsel for Respondent
Lisa F. Ryan, Scott A. Schachter
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before: RUTH B. GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.