Hazardous Waste Treatment Council v. United States Environmental Protection Agency

No. 90-1160 (D.C. Cir. August 17, 1990)

The court rules that the Environmental Protection Agency's (EPA's) approval of a "no-migration" petition under § 3004 of the Resource Conservation and Recovery Act (RCRA) is not reviewable under RCRA § 7006. The no-migration exemption from RCRA's ban on the land disposal of hazardous waste allows an applicant to build an underground injection well for hazardous waste disposal if it can demonstrate that no migration of hazardous constituents will occur for as long as the waste remains hazardous. Environmental organizations sought direct review of EPA's decision, arguing that EPA's approval of the company's no-migration petition amounted to the promulgation of a regulation. The court holds that EPA's decision does not qualify as the promulgation of a regulation. EPA's action concerns a single well in a single town, and it does not involve the interpretation of a regulation or constitute a decision of widespread application.

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

Jane L. Bloom, Jacqueline M.Warren
Natural Resources Defense Council, Inc.
122 E. 42nd St., 45th Fl., New York NY 10168
(202) 949-0049

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

Before SILBERMAN, D.H. GINSBURG, and THOMAS, Circuit Judges.

[20 ELR 21359]

PER CURIAM:

This petition for review challenges the Environmental Protection Agency's approval of a "no migration" exemption permitting Gibraltar Chemical Resources, Inc. to dispose of hazardous wastes by underground injection. Because we hold that this court lacks statutory authority to consider the petition, we dismiss it for lack of jurisdiction.

The "land disposal" of hazardous wastes is governed by subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §§ 6901-6992k. Section 6924(k) defines land disposal to include "any placement of . . . hazardous waste in [an] . . . injection well." Id. § 6924(k). Disposal by injection is permissible only when wastes have been pre-treated to reduce toxicity, see id. § 6924(d), (m), or when the EPA has determined that the disposal will be "protective of human health and the environment" for as long as the waste remains hazardous. Id. § 6924(d)(1), (e)(1), (f)(2), (g)(5).

Land disposal may be found to be "protective of human health and the environment" only if the EPA concludes that there will be "no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous." Id. § 6924(d)(1), (e)(1), (g)(5). In order to qualify for this "no migration" exemption with respect to the placement of hazardous waste in an injection well, an applicant, in addition to adhering to the applicable permit requirements, must file with the EPA a petition demonstrating "to a reasonable degree of certainty" that the hazardous constituents will not migrate and that the applicant's facility will comply with the regulatory standards governing the underground injection of hazardous wastes. Id. § 6924(d)(1), (e)(1), (g)(5); 40 C.F.R. §§ 146, 148 (1989).

In this case, Gibraltar, owner and operator of a hazardous waste injection well in Winona, Texas, seeks to build another well on the same site. On March 9, 1988, Gibraltar filed a no migration petition with the EPA. On January 11, 1990, following public notice and comment, the EPA published its final approval of Gibraltar's no migration petition. See 55 Fed. Reg. 1096 (Jan. 11, 1990). Petitioner Hazardous Waste Treatment Council, joined by several other environmental and citizens' groups, now seeks direct review of the EPA's decision.

Section 6976 of title 42 defines the scope of this court's jurisdiction to review agency actions. Under section 6976(a), the court has exclusive jurisdiction to review any action of the EPA "in promulgating any regulation or requirement" or in "denying any petition for the promulgation, amendment or repeal of any regulation." 42 U.S.C. § 6976(a)(1). Section 6976(b) also provides for judicial review of the EPA's action in "issuing, denying, modifying, or revoking any permit under section 6925" or in "granting, denying, or withdrawing authorization or interim authorization under section 6926." Id. § 6976(b).

The petitioners concede that the EPA's approval of Gibraltar's no migration petition does not constitute action on a permit within the meaning of section 6976(b), but argue that the EPA's approval of Gibraltar's no migration petition was "tantamount to" the promulgation of a regulation and is therefore subject to this court's direct review. We find this argument lacking in merit.

When courts have construed EPA action to constitute the promulgation of regulations, the agency's action has involved the interpretation of a regulation or governing standard, or the ruling has constituted a decision of uniform or widespread application. See, e.g., McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988) (EPA's denial of steel manufacturer's listing petition held reviewable since EPA's use of "vertical and horizontal spread model" to predict leachate levels of hazardous components could be used by agency in other contexts); Modine Mfg. Corp. v. Kay, 791 F.2d 267, 270 (3d Cir. 1986) (statutory authority to review EPA's promulgation of effluent standards confers jurisdiction to review agency's "interpretation" of pretreatment standards as applied to particular dischargers); see also Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) (EPA's withdrawal of decision to defer processing of operating permits for hazardous waste incinerators held a suspension of a regulation).

Here, in contrast, the EPA's action concerns a single well in a single town, and the decision simply grants Gibraltar's petition without elaborating. The EPA's action does not interpret or refine previous regulations promulgated by the agency. Under these circumstances, holding that the EPA's decision to approve Gibraltar's no migration petition constitutes the promulgation of a regulation would contravene the plain meaning of section 6976 as well as the decisions interpreting that statute.

Although, as the petitioners observe, the Supreme Court has instructed courts of appeals to construe "ambiguous" jurisdictional provisions expansively to permit direct appellate review of administrative actions, see Lindahl v. Office of Personnel Management, 470 U.S. 768, 778-79 (1984); Florida Power & Light Co. v. Lorain, 470 [20 ELR 21360] U.S. 729, 736 (1984), the language of section 6976 is clear. It permits review of EPA decisions in only two types of actions. Because the EPA's decision here does not qualify as action on a permit or as the promulgation, amendment, or repeal of a regulation, we must dismiss this petition. See Lancellotti v. Office of Personnel Management, 704 F.2d 91, 97 (3d Cir. 1983) (courts of appeal lack jurisdiction absent statutory mandate).

It is so ordered.