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United Technologies Corp. v. EPA

Citation: 17 ELR 21015
No. Nos. 85-1654 et al., 821 F.2d 714/26 ERC 1110/(D.C. Cir., 06/23/1987)

The court holds that the Environmental Protection Agency's (EPA's) final rule issued in 1985 without notice and comment to incorporate the requirements from the 1984 amendments to the Resource Conservation and Recovery Act (RCRA) is, for the most part, reasonable and consistent with the amendments. The court initially holds that the final rule is an interpretative rule not subject to the notice and comment requirements of the Administrative Procedure Act (APA). The purpose of the rule was to codify or construe the specific statutory requirements imposed by the 1984 amendments and the rule's validity depends on whether EPA correctly interpreted those statutory requirements. Assuming that some of the regulations could be classified as legislative, the court holds that EPA properly invoked the APA's good cause exception to the notice and comment requirement. The court holds that it lacks jurisdiction to consider a petition brought by environmental groups asserting that EPA must amend its groundwater monitoring regulations to comply with the corrective action requirements in RCRA § 3004(u). The environmental groups' claim that EPA should have issued such a rule does not fall within the court's jurisdiction under RCRA § 7006(a)(1) to hear challenges to regulations already issued or challenges to EPA denials of rulemaking petitions.

On the merits, the court holds that EPA's definition of "facility" in its regulation implementing RCRA § 3004(u)'s corrective action requirement as extending to all contiguous property under the owner or operator's control is consistent with § 3004(u) and congressional intent. The definition is not inconsistent with § 3004(u)'s directive to take corrective action for hazardous waste releases from any solid waste management unit "at a treatment, storage or disposal facility." The use of the word "at" does not show an intent to limit the duty to take corrective action to contiguous land used for hazardous waste, since this interpretation would virtually nullify the requirement to take corrective action for releases from solid waste management units. EPA's definition is also consistent with Congress' purpose in enacting § 3004(u) to ensure that EPA would not issue permits to facilities that are causing groundwater contamination from inactive units without requiring corrective action. This view is confirmed by the broad use of "facility" in § 3004(v). EPA is not bound by its prior definition of facility because it is construing newly enacted statutory language and has adequately explained its reasons for the new definition. EPA's interpretation will not allow it to intrude into industry production processes or areas not used for solid waste management, since the regulation is specifically limited to releases from solid waste management units.

The court next holds that the provision of the regulations that imposes § 3004(o)'s minimum technology requirements on owners and operators whose applications for permits under § 3005(e) were granted after November 8, 1984 is invalid. RCRA's plain language imposes § 3004(o)'s requirements on owners and operators whose applications are received after that date. Finally, the court holds not ripe for review an industry petitioner's claim that EPA exceeded its authority by failing to exempt releases from solid waste management units devotedto the handling of fossil fuel combustion wastes from the corrective action requirements. EPA has taken no position on the applicability of the corrective action requirements to fossil fuel combustion wastes and plans no enforcement action against these facilities.

[Briefs in this case are digested at ELR PEND. LIT. 65927.]

Counsel for Petitioners
Robert Wise, John W. Casey
Pratt & Whitney Aircraft Group
400 Main St., E. Hartford CT 06108
(203) 565-4321

Counsel for Respondents
Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before: EDWARDS and STARR, Circuit Judges, and SWYGERT,* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.