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American Petroleum Inst. v. EPA

Citation: 30 ELR 20686
No. No. 94-1683, 216 F.3d 50/50 ERC 1833/(D.C. Cir., 06/27/2000)

The court vacates a portion of a U.S. Environmental Protection Agency (EPA) regulation in which it determined that oil-bearing wastewaters generated by the petroleum refining industry are solid wastes under the Resource Conservation and Recovery Act (RCRA), but upheld EPA's determination that recovered oil from petrochemical manufacturing facilities is excluded from the definition of solid waste when certain conditions are met. The court first holds that EPA did not provide a rational explanation for its decision to include oil-bearing wastewaters as solid waste under RCRA and, therefore, the decision was arbitrary and capricious. EPA failed to set forth why it concluded that compliance with the Clean Water Act is the motivation for treatment of the oil-bearing wastewaters as opposed to reclamation of oil. The court next holds, however, that EPA's regulation excluding petrochemical oil from the definition of solid waste, provided that certain conditions are met, was proper. The conditions are designed to disqualify from the exclusion oil that contains nonrefinable hazardous materials. EPA was concerned that if additional unneeded materials present in petrochemical-recovered oil were covered by the exclusion, it would allow forimproper disposal of waste materials through adulteration, known as "sham recycling." Abandoning a material is discarding, even if it is labeled recycling, and EPA can regulate material discarded through sham recycling even though it cannot regulate under RCRA materials that are not discarded. The court additionally holds that, relying on individual risk, EPA adequately demonstrated that the listed refinery wastes posed a substantial present or potential hazard to human health or the environment and, therefore, properly listed them as hazardous waste. Neither RCRA nor its regulations require population risk as a factor that EPA must weigh with and against individual risk to determine whether a particular hazard is substantial. Nor do the regulations imply that substantial individual risk alone, without high population risk, cannot be enough to constitute a substantial hazard.

The court further holds that environmental groups lack standing to challenge unleaded gas storage tank sediment as hazardous waste. The environmental groups' evidence did not demonstrate that EPA's alleged failings caused a traceable concrete and particularized harm to their members that is actual or imminent. Similarly, the court holds that the environmental groups lack standing to challenge under the notice-and-comment provision of the Administrative Procedure Act EPA's decision not to regulate solid wastes inserted into the coking process because the groups failed to link the practices complained of to the alleged harms or imminent harms to their members. Finally, the court holds that it lacks jurisdiction to review EPA's decision to defer a listing determination for coke product and fumes accidentally released into the air, or otherwise inadvertently released, from saleable piles of coke. The determination the environmental groups challenge is the deferral of a rulemaking, not a final rule and a decision by an agency to defer taking action is not a final action reviewable by the court.

Counsel for Petitioners
Michael W. Steinberg
American Petroleum Institute
1220 L St. NW, Washington DC 20005
(202) 682-8000

Counsel for Respondent
Steven E. Silverman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams, Sentelle, and Rogers, JJ.