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Natural Resources Defense Council v. EPA

ELR Citation: 24 ELR 20959
Nos. No. 92-1371, 25 F.3d 1063/38 ERC 1639/(D.C. Cir., 05/27/1994)

The court upholds the U.S. Environmental Protection Agency's (EPA's) decision not to list used oil from gasoline-powered engines that is destined for disposal as hazardous waste under the Resource Conservation Recovery Act (RCRA). The court first holds that petitioners have standing to challenge EPA's decision, because petitioners' allegation that some of its members live in communities subject to incidents resulting from mismanagement of used oil adequately alleges a cognizable injury that is arguably traceable to EPA's decision not to list the oil. The court holds that neither RCRA nor EPA's regulations require EPA to list used oil from gasoline-powered engines solely because they exhibit the toxicity characteristic. Upholding EPA's interpretation of the Agency's listing regulation at 40 C.F.R. §261.11, the court finds that although §261.11(a)(1) would have allowed EPA to list used oil, because it exhibits the requisite toxicity characteristic, nothing in the regulation compels EPA to make its listing determination solely under 40 C.F.R. §261.11(a)(1). The court holds that RCRA authorizes EPA to make its determination under the balancing test set forth in §261.11(a)(3), as EPA did. The court next holds that EPA properly applied and construed §261.11(a)(3) in deciding not to list used oil. EPA properly considered the relevant criteria and may place greater emphasis on the factors it considers more important. Moreover, EPA may rely on the existence of other federal regulatory programs in making its decisions. The court rejects petitioners' argument challenging EPA's reliance on, and the validity of, EPA's toxicity characteristic leaching procedure (TCLP), because petitioners did not timely challenge the TCLP rule, and thus may not now challenge the TCLP collaterally in the context of this litigation. Finally, the court holds that petitioners waived their argument that EPA construed the listing regulation in a manner inconsistent with RCRA and the Agency's regulations, because petitioners failed to raise the statutory construction question before the Agency.

Counsel for Petitioners
David R. Case
Hazardous Waste Treatment Council
915 15th St. NW, 5th Fl., Washington DC 20005
(202) 783-0870

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

Before WALD, GINSBURG, and SENTELLE, Circuit Judges.