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Louisiana Envtl. Action Network v. EPA

ELR Citation: 29 ELR 21038
Nos. 98-1082, 172 F.3d 65/(D.C. Cir., 03/26/1999)

The court upholds a U.S. Environmental Protection Agency (EPA) rule that allows the Agency to issue variances from general Resource Conservation and Recovery Act (RCRA) treatment standards if such standards would likely discourage aggressive remediation of previously disposed of hazardous waste. The court first holds that the environmental group challenging the rule has standing. Application of the rule will lower the average quality of waste and increase the quantity of waste at a landfill located near homes of some of the group's members. The court then holds that the challenge is fit for judicial review. The court then holds that EPA's rule is proper under RCRA §3004(m). Section 3004(m) does not bar EPA from considering the threats of leaving previously disposed of waste in place. The court further holds that American Petroleum Institute v. EPA, 20 ELR 21091 (D.C. Cir. 1990) (API) does not bar EPA from considering the protective effect of eventual disposal in a Subtitle C landfill. API makes clear that in measuring whether the treatment required will substantially diminish toxicity or substantially reduce the likelihood of migration, EPA must look to pre-disposal treatment. But as to whether EPA may look more broadly in determining if the overall effect is to minimize threats, API says nothing. The court also holds that EPA's interpretation of the statute's language and structure is reasonable.

A partially dissenting judge would hold that the environmental group failed to establish that it had standing. The judge believes that the group's alleged injury is purely speculative.

[Briefs and Pleadings in this litigation are published at BRIEFS & PLEADS. 66642.]

Counsel for Petitioners
David R. Case
Environmental Technology Council
734 15th St. NW, Ste. 720, Washington DC 20005
(202) 783-0870

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

Before Garland, J., with Sentelle, J., concurring in part and dissenting in part