Team No. 29

CA. No. 18-2010 CA. No. 400-2010

___________________________________________________________________________

UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

___________________________________________________________________________

CITIZEN ADVOCATES FOR REGULATION AND THE ENVIRONMENT, INC

Petitioner-Appellants-Cross-Appellee, v.

LISA JACKSON, ADMINISTRATOR,

U.S. Environmental Protection Agency, Respondent-Appellee-Cross Appellant

v. STATE OF NEW UNION,

Intervenor-Appellee-Cross-Appellant

________________________________________________________________________ ON APPEAL FROM THE UNITED STATE DISTRICT COURT

FOR THE DISTRICT OF NEW UNION ______________________________________________________________________________

_________________________________________ _____________________________________

BRIEF FOR APPELLEES STATE OF NEW UNION

________________________________________________________________________ ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

SECTION PAGE(S)

TABLE OF CONTENTS………………………………………………………………..………..ii TABLE OF AUTHORITIES……………………………………………………………………..iv JURISDICTIONAL STATEMENT……………………………………………………………....1 STATEMENT OF THE ISSUES………………………………………………………..…….….1 STATEMENT OF THE CASE……………………………………………………………….…..2 STATEMENT OF THE FACTS…………………………………………………………….……3 SUMMARY OF THE ARGUMENT……………………………………………………….….…4 STANDARD OF REVIEW……………………………………………………………….………6 ARGUMENT…………………………………………………………………………….……..…6

I. THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S RULING THAT IT LACKED JURISDICTION UNDER 42 U.S.C. § 6926(b) TO FORCE EPA TO ACT ON CARE’S PETITION.………………………….…………6

II. THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S RULING THAT IT LACKED JURISDICTION UNDER 28 U.S.C. § 1331 TO FORCE EPA TO ACT ON CARE’S PETITION………………………….……..…12

III. EPA’S INACTION ON CARE’S PETITION DOES NOT CONSTITUTE

A CONSTRUCTIVE ACTION OF ANY KIND AND THAT ACCORDINGLY, JUDICIAL REVIEW IS IMPROPER UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE RESOURCE CONSERVATION AND RECOVERY ACT……………….………14

IV. IF THE COURT GRANTS JURISDICTION AND DETERMINES THAT

EPA’S FAILURE TO ACT ON CARE’S PETITION CONSTITUTED A CONSTRUCTIVE ACTION, THEN THE COURT SHOULD REMAND THE CASE BACK TO THE DISTRICT COURT TO ORDER EPA TO INITIATE AND COMPLETE PROCEEDINGS TO CONSIDER WITHDRAWAL OF ITS APPROVAL OF NEW UNION’S HAZARDOUS WASTE PROGRAM.………………………………………..…..…19

V. NEW UNION’S PROGRAM MAY NOT BE WITHDRAWN BY THE EPA

UNTIL EPA HOLDS A HEARING AND ALLOWS NEW UNION TO CORRECT ANY PERCEIVED DEFICIENCIES.………………………….………21

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TABLE OF CONTENTS (CONT.)

SECTION PAGE(S)

VI. ANY ISOLATED DEFICIENCY IN NEW UNION’S HAZARDOUS WASTE PROGRAM RELATED TO THE REGULATION OF WASTE FROM RAILROAD FACILITIES DOES NOT COMPEL THE EPA TO COMMENCE PROCEEDINGS FOR THE WITHDRAWAL OF AUTHORIZATION OF NEW UNION’S ENTIRE PROGRAM.…………………………………………………………….…24

VII. NEW UNIONS ERAA AMENDMENT DOES NOT ADVERSELY

EFFECT THE EQUIVALENCY OF THE STATE PROGRAM WITH THE FEDERAL PROGRAM, IS NOT INCONSISTENT WITH THE FEDERAL OR OTHER APPROVED STATE PROGRAMS, AND DOES NOT VIOLATE THE COMMERCE CLAUSE.………………………27

CONCLUSION…………………………………………………………………………………..33

  iv

TABLE OF AUTHORITIES

SUPREME COURT CASES PAGE(S)

Abbot Laboratories v. Gardner, 387 U.S. 136 (1967).....................................................................................................19, 20, 21 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984).................................................................................................9, 10, 11, 28 City of Philadelphia v. New Jersey,

437 U.S. 617 (1978).................................................................................................................31

Crandon v. United States, 494 U.S. 152 (1990)...................................................................................................................9

Dean Milk Co. v. Madison, 340 U.S. 349 (1951).................................................................................................................32

Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928).....................................................................................................................32

Heckler v. Chaney, 470 U.S. 821 (1985).....................................................................................................22, 24, 25

Hinck v. United States, 550 U.S. 501 (2007)...........................................................................................................22, 24

Hughes v. Oklahoma, 441 U.S. 322 (1979).................................................................................................................28

Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694 (1982)...................................................................................................................6

Johnson v. Haydel, 278 U.S. 16 (1928)...................................................................................................................32

Ohio Forestry Association Inc. v. Sierra Club, 523 U.S. 726 (1998).....................................................................................................19, 20, 21

Mead Corp. v. United States, 533 U.S. 218 (2001)...................................................................................................................9

Minnesota v. Barber, 136 U.S. 313 (1890).................................................................................................................32

New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988)...........................................................................................................27, 31

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TABLE OF AUTHORITIES (CONT.)

SUPREME COURT CASES PAGE(S)

Pike v. Bruce Church, 397 U.S. 137 (1970)...........................................................................................................32, 33

Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946).................................................................................................................28

South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984)...................................................................................................................31

Sporhase v. Nebraska, 458 U.S. 941 (1991).................................................................................................................29

Toomer v. Witsell, 334 U.S. 385 (1948).................................................................................................................32

United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007).................................................................................................................29

United States v. Bean, 537 U.S. 71 (2002)...................................................................................................................17

Webster v. Doe, 486 U.S. 592 (1988).................................................................................................................13

CIRCUIT COURT CASES

Air N. Am. v. Dep’t of Transp., 937 F.2d 1427 (9th Cir. 1991) ...............................................................................................8, 9

Air Transport Ass’n of America v. Dept. of Transp., 900 F.2d 369 (D.C. Cir. 1990)...................................................................................................9

Allegheny County Sanitary Auth. v. E.P.A., 732 F.2d 1167 (3rd Cir. 1984) .................................................................................................13

American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987)...........................................................................................9, 10

Bullard v. Webster, 623 F.2d 1042 (5th Cir. 1980) .................................................................................................14

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TABLE OF AUTHORITIES (CONT.)

CIRCUIT COURT CASES PAGE(S)

City of Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975) ...................................................................................................13

Consolidation Coal Co. v. Donovan, 656 F.2d 910 (3rd Cir. 1981) ...................................................................................................17

Dubois v. Thomas, 820 F.2d 943 (8th Cir. 1987) .............................................................................................23, 24

Ellison v. Connor, 153 F.3d 247 (5th Cir. 1998) ...............................................................................................6, 14

Go Leasing, Inc. v. Nat’l Transp. Safety Board, 800 F.2d 1514 (9th Cir. 1986) ...................................................................................................9

Harmon Indus. v. Browner, 191 F.3d 894 (8th Cir. 1999) ...................................................................................................22

Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) ...............................................................................................16

Hazardous Waste Treatment Council v. U.S. E.P.A., 861 F.2d 277 (D.C. Cir. 1988).................................................................................................11

Kirby Corp. v. Pena, 109 F.3d 258 (5th Cir. 1997) ...................................................................................................13

MCI Telecomms. Corp v. FCC, 627 F.2d 322 (D.C. Cir. 1980).................................................................................................17

National Treasury Employees Union v. Weise, 100 F.3d 157 (D.C. Cir. 1996)...................................................................................................7

New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321 (5th Cir. 2008) .....................................................................................................6

Oregon Natural Res. Council v. U.S. Forest Serv., 834 F.2d 842 (9th Cir. 1987) ...................................................................................................13

Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) ...............................................................................................5, 14

Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001) .............................................................................................23, 24

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TABLE OF AUTHORITIES (CONT.)

CIRCUIT COURT CASES PAGE(S)

Texas Disposal Sys. Landfill v. U.S. E.P.A, 377 F. App’x 406 (5th Cir. 2010) ..........................................................................18, 22, 24, 25

U.S. v. Fitch Oil Co., 676 F.2d 673 (Emer. Ct. App. 1982) .......................................................................................11

U.S. v. Power Eng’g Co., 303 F.3d 1232 (10th Cir. 2002) .............................................................................18, 22, 23, 30

Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745 (5th Cir. 2009) .....................................................................................................6

Village of Winnetka, Illinois v. Federal Energy Regulatory Commission, 678 F.2d 354 (D.C. Cir. 1982)...........................................................................................16, 17

W.C. v. Bowen, 807 F.2d 1502 (9th Cir. 1987) ...................................................................................................9

DISTRICT COURT CASES

Altman v. United States, 2004 U.S. Dist. LEXIS 28215, 2004 WL 3019171 (W.D. N.Y. Dec. 30, 2004) ..............23, 24

Amoco Oil Co. v. United States EPA, 959 F. Supp. 1318 (D. Colo. 1997)..........................................................................................23

American Oceans Campaign v. Daley, 183 F.Supp. 2d 1 (D.D.C. 2000)................................................................................................7

Johnson County Citizen Comm’n for Clean Air & Water v. United States EPA, 2005 U.S. Dist. LEXIS 33190 (M.D. Tenn. Sept. 9, 2005).....................................................24

Sierra Club v. United States EPA, 377 F. Supp. 2d 1205 (N.D. Fla. 2005) .............................................................................23, 24

Weatherby Lake Improvement Co. v. Browner, 1997 U.S. Dist. LEXIS 14741, 1997 WL 687656 (W.D. Mo. Apr. 17, 1997)........................24

UNITED STATES CONSTITUTION

U.S. Const. Art. III...........................................................................................................................6

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TABLE OF AUTHORITIES (CONT.)

STATUTES PAGE(S)

5 U.S.C. § 551 (2010)..................................................................................................................7, 8

5 U.S.C. § 553 (2010)......................................................................................................1, 5, 12, 13

5 U.S.C. § 701 (2010)................................................................................................................6, 19

16 U.S.C. § 835l (2010).................................................................................................................16

28 U.S.C. § 1291 (2010)..................................................................................................................1

28 U.S.C. § 1331 (2010)........................................................................................................3, 5, 12

33 U.S.C. § 1342 (2010)................................................................................................................23

33 U.S.C. § 1344 (2010)................................................................................................................10

33 U.S.C. § 1365 (2010)................................................................................................................15

42 U.S.C. §§ 6901 et seq. (2010) (Resource Conservation and Recovery Act) ..............................1

42 U.S.C. § 6904 (2010)................................................................................................................29

42 U.S.C. § 6923 (2010)................................................................................................................31

42 U.S.C. § 6924 (2010)..........................................................................................................17, 21

42 U.S.C. § 6925 (2010)................................................................................................................10

42 U.S.C. § 6926 (2010)..................................................1, 6, 10, 16, 18, 20, 22, 23, 25, 26, 27, 30

42 U.S.C. § 6928 (2010)................................................................................................................26

42 U.S.C. § 6972 (2010)................................................................................................1, 3, 4, 6, 15

42 U.S.C. § 6974 (2010)..........................................................................................1, 2, 3, 6, 10, 12

42 U.S.C. § 6976 (2010)..........................................................................................1, 3, 8, 9, 15, 19

49 U.S.C. § 5102 (2010)................................................................................................................31

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TABLE OF AUTHORITIES (CONT.)

REGULATIONS , ADMINISTRATIVE DECISIONS, AND OTHER AUTHORITIES PAGE(S)

40 C.F.R. § 271.21.........................................................................................................................30

40 C.F.R. § 271.22.............................................................................................................18, 22, 30

40 C.F.R. § 271.23.................................................................................................11, 16, 17, 18, 21

40 C.F.R. § 271.4...........................................................................................................................28

40 C.F.R. § 272..............................................................................................................................10

40 C.F.R. § 553(b)(A)....................................................................................................................11

50 Fed. Reg. 46,437.......................................................................................................................29

50 Fed. Reg. 46,439.......................................................................................................................28

50 Fed. Reg. 46,440.......................................................................................................................30

H.R. REP. NO. 94-1491(I) (1976)...................................................................................................26

F.R.C.P. Rule 24 ..........................................................................................................................1, 2

 

JURISDICTIONAL STATEMENT This is an appeal from the decision of a District Court dismissing claims of violations of

the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (2006) for lack of

subject matter jurisdiction. The claims were made by Plaintiffs Citizen Advocates for

Regulation and the Environment, Inc. (CARE) against Defendants U. S. Environmental

Protection Agency (EPA). The State of New Union intervened under FRCP 24. This Court has

jurisdiction under 28 U.S.C. § 1291 (2010) over final decisions of district courts.

STATEMENT OF THE ISSUES I. Whether RCRA § 7002(a)(2) provides jurisdiction for district courts to order EPA to act on CARE’s petition for revocation of EPA’s approval of New Union’s hazardous waste program, filed pursuant to RCRA § 7004. II. Whether 28 U.S.C. § 1331 provides jurisdiction for district courts to order EPA to act on CARE’s petition for revocation of EPA’s approval of New Union’s hazardous waste program, filed under 5 U.S.C. § 553(e) (2010). III. Whether EPA’s failure to act on CARE’s petition that EPA initiate proceedings to consider withdrawing approval of New Union’s program constituted a constructive denial of that petition and a constructive determination that New Union’s program continued to meet RCRA’s criteria for program approval under RCRA § 3006(b), both subject to judicial review under RCRA §§ 7002(a)(2) and 7006(b). IV. Whether this Court should lift the stay in C.A. No. 18-2010 and proceed with judicial review of EPA’s constructive actions or should the Court remand the case to the lower court to order EPA to initiate and complete proceedings to consider withdrawal of its approval of New Union’s hazardous waste program. V. Assuming this Court proceeds to the merits of CARE’s challenge, whether EPA must withdraw its approval of New Union’s program because its resources and performance fail to meet RCRA’s approval criteria.

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VI. Assuming this Court proceeds to the merits of CARE’s challenge, whether EPA must withdraw its approval of New Union’s program if the New Union 2000 Environmental Regulatory Adjustment Act effectively withdraws railroad hazardous waste facilities from regulation. VII. Assuming this Court proceeds to the merits of CARE’s challenge, whether EPA must withdraw its approval of New Union’s program if the New Union 2000 Environmental Regulatory Adjustment Act renders New Union’s program not equivalent to the federal RCRA program, inconsistent with the federal program and other approved state programs, or in violation of the Commerce Clause.

STATEMENT OF THE CASE

A. Procedural History

The Citizen Advocates for Regulation and the Environment, Inc. (CARE), filed suit in the

District Court of New Union, first seeking an injunction requiring EPA to act on a petition it

filed with EPA. That petition requested that the EPA commence proceedings to withdraw its

approval of New Union’s hazardous waste program. CARE also asked for judicial review of

EPA’s constructive denial of the petition and EPA’s constructive determination that New

Union’s hazardous waste program meets the criteria for approval despite the alleged facts. On

January 4, 2010, New Union filed an unopposed motion to intervene under FRCP Rule 24, which

the District Court granted. The parties filed cross-motions for summary judgment, agreeing that

the facts alleged by CARE were uncontested and no further facts were necessary to decide the

matter. CARE simultaneously also filed a petition for review with the Court of Appeals, C.A.

No. 18-2010, seeking judicial review of EPA’s constructive denial and determination on the

same grounds. New Union also filed an unopposed motion to intervene in that case, which the

Court of Appeals granted. On EPA’s motion, the Court of Appeals stayed that proceeding,

pending the outcome of the District Court’s decision.

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The District Court held that the court does not have jurisdiction to hear CARE’s claims

under 42 U.S.C. § 6972(a)(2) because CARE’s petition was not submitted under 42 U.S.C. §

6974. The Court also held that it lacked jurisdiction under 28 U.S.C. § 1331 because Congress

replaced the authority of the APA over petitions with the more specific RCRA, when it comes to

RCRA. The Court finally held that any judicial review of a “constructive” determination by

EPA should be made in the Court of Appeals pursuant to RCRA § 7006.

B. Factual Background

In 1986 the Environmental Protection Agency approved the State of New Union

hazardous waste program, developed to operate in lieu of a federal program under the Resource

Conservation and Recovery Act (RCRA). (Rec. doc. 2, p.1). Since the authorization of New

Union’s program, the state has seen a steady increase in hazardous waste treatment, storage and

disposal facilities (TSDs) requiring permits under RCRA. Id. Corresponding with the increase

in TSDs, beginning in the year 2000, New Union’s hazardous waste regulatory body, DEP, was

forced to limit the hazardous waste program’s resources due to statewide decreases in

department funding caused by deterioration of the state’s finances. Id.

In response to the decline in resources to administer the hazardous waste program, the

DEP has taken steps to prioritize permitting and enforcement actions, and has additionally,

solicited the EPA’s aid in promulgating necessary enforcement measures throughout the state.

(Rec. doc. 4 for 2009, p. 20-23). In regard to permits, the DEP has focused its efforts on

permitting new TSDs or TSDs expanding operations within the state, while still devoting

resources to facilities with expired permits and permitted facilities with high risk for harm to the

public and the environment. (Rec. doc. 4 for 2009, p. 23). Correspondingly, the DEP has

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directed the bulk of its inspection and enforcement efforts towards those facilities reporting

violations posing the greatest harm to public health and the environment. Id. Furthermore, the

DEP has solicited the aid of the EPA in inspecting TSDs and enforcing the hazardous waste

program and anticipates continuing to work in conjunction with the EPA in matters of

enforcement. Id.

Near the onset of New Union’s financial crisis, the New Union legislature enacted the

2000 Environmental Regulatory Adjustment Act (ERAA), which had two notable effects on

DEP’s administration of the state hazardous waste program. First, the act amended the Railroad

Regulation Act (RRA), under which the New Union Railroad Commission was authorized.

(Rec. doc. 4 for 2000, pp. 103-105). The amendment to the RRA transferred enforcement of the

hazardous waste program over railroad facilities from the DEP to the Railroad Commission in

addition to removing criminal sanctions for “violations of environmental statutes, by facilities

falling under the jurisdiction of the Commission.” Id. Second, the ERAA amended the

hazardous waste program’s treatment of Pollutant X – a pollutant recognized by the EPA and the

World Health Organization to be “among the most potent and toxic chemicals to public health

and the environment.” (Rec. doc. 4 for 2000, pp. 105-107). Under the amendment, the ERAA

implemented a plan to cease entirely the production of Pollutant X in New Union. Id. Also, the

amendment provided stipulations for the temporary storage of Pollutant X and its required

transport to one of the nine Pollutant X treatment and disposal facilities (none of which are

located in New Union). Id.

SUMMARY OF THE ARGUMENT

The lower court correctly held that it lacked subject matter jurisdiction to order EPA to

act on CARE’s petition under 42 U.S.C. § 6972. Under 42 U.S.C. § 6974, the EPA is only

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required to respond to petitions regarding “rules.” CARE’s petition referred to an “order,” not a

“rule.” Therefore, it was in the Administrator’s discretion not to act on CARE’s petition.

The lower court also correctly held that it lacked subject matter jurisdiction to force the

EPA to act on CARE’s petition under 28 U.S.C. § 1331. Under 5 U.S.C. § 553(e), agencies are,

once again, only required to respond to petitions regarding “rules.” Furthermore, Congress

proscribed specific requirements of petitions to the EPA under RCRA. CARE cannot jump to

the APA and bypass specific requirements of RCRA to make a claim.

EPA has made neither a constructive denial of CARE’s petition, nor a constructive

determination regarding any aspect of New Union’s hazardous waste program. Scott v.

Hammond provides no authority to infer a discretionary agency action where no agency action

took place. Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984). Moreover, inaction cannot

properly amount to an agency action where Congress clearly intended a multi-step administrative

procedure to predicate an agency action, as in the case of withdrawal of authorization of a state

program under the Resource Recover and Conservation Act. Judicial review under the APA and

RCRA require an agency action; therefore, because EPA did not act in any way on CARE’s

petition, judicial review is not proper. Even if EPA were to find New Union’s program’s

resources and performance insufficient, EPA retains discretion to take action other than the

complete withdrawal of New Union’s program.

Neither the withdrawal of railroad hazardous waste facilities from regulation by the DEP

nor New Union’s Environmental Regulatory Adjustment Act (ERAA) compels EPA to withdraw

approval of New Union’s entire hazardous waste program. CARE cannot compel EPA to

perform a discretionary action, such as the commencement of proceedings to consider

withdrawal of authorization of a state program. Furthermore, through RCRA, Congress provided

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EPA with enforcement power to confront both isolated compliance issues as well as program-

wide deficiencies. EPA has the discretion to implement whatever enforcement action it deems

necessary to promote the policies and legal requirements of RCRA.

STANDARD OF REVIEW

A district court’s determination that it lack subject matter jurisdiction receives de

novo review of its legal conclusions.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748

(5th Cir. 2009). “The party seeking to assert federal jurisdiction . . .has the burden of proving by

a preponderance of the evidence that subject matter jurisdiction exists.” New Orleans & Gulf

Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008).

ARGUMENT

I. THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S RULING THAT IT LACKED JURISDICTION UNDER 42 U.S.C. § 6926(b) TO FORCE EPA TO ACT ON CARE’S PETITION. Subject matter jurisdiction is a threshold requirement imposed by Article III. Ins. Corp.

of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 701-02 (1982); see U.S. Const. Art.

III, § 2, cl. 1 (conferring jurisdiction on federal district courts over cases “arising under . . . the

laws of the United States”). The Administrative Procedure Act (APA) bars subject matter

jurisdiction over administrative agencies “to the extent that--(1) statutes preclude judicial review;

or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a) (2010); see,

e.g., Ellison v. Connor, 153 F.3d 247, 254 (5th Cir. 1998). CARE brings this suit under 42

U.S.C. § 6972(a)(2) that states, “…any person may commence a civil action on his own behalf,

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(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

42 U.S.C. § 6972(a)(2) (2010) (emphasis added). New Union argues that failing to respond to

the petition to begin withdrawal proceedings is an agency action committed to agency discretion

by law. Accordingly, 42 U.S.C. § 6972 does not provide an action against the EPA for failing to

respond to CARE’s petitions. The court, therefore, lacks subject matter jurisdiction.

CARE argues that the EPA had a “non-discretionary” duty to respond to its petition to

begin withdrawal proceedings of New Union’s hazardous waste program according to RCRA’s

provision that “any person may petition the Administrator for the promulgation, amendment, or

repeal of any regulation under this chapter.” 42 U.S.C. § 6974 (2010). RCRA further provides

that “the Administrator shall take action with respect to such petition and shall publish notice of

such action in the Federal Register….” Id. While New Union agrees that EPA is required to

take action on any petition submitted under 42 U.S.C. § 6974, CARE’s petition was not

submitted under 42 U.S.C. § 6974. This statute refers to petitions regarding any “regulation” of

EPA. While the term “regulation” is not defined under RCRA, nor the APA, courts have

consistently held that “regulation” and “rule” are used interchangeably. See, e,g., American

Oceans Campaign v. Daley, 183 F.Supp. 2d 1, 11 (D.D.C. 2000). The District of Columbia

Court of Appeals has held that “Courts and Congress treat the terms ‘regulation’ and ‘rule’ as

interchangeable and synonymous. When we speak of an agency’s ‘regulation’ - a term nowhere

mentioned in the Administrative Procedure Act, 5 U.S.C. § 551 et seq. - we have in mind what

the APA defines as a ‘rule,’ ….” National Treasury Employees Union v. Weise, 100 F.3d 157,

160 (D.C. Cir. 1996). Therefore, in order for a petition to fall under 42 U.S.C. § 6974, it must

regard a “rule” promulgated by the Administrator.

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New Union argues that the EPA’s authorization of New Union’s hazardous waste

program was an “order” under the APA, not a “rule.” The petition does not refer to a “rule” and

does not fall under 42 U.S.C. § 6974. Because the petition did not fall under 42 U.S.C. § 6974,

the Administrator was not required to respond to the petition. Therefore, it was a discretionary

act whether the Administrator would respond.

The APA defines “rule” as:

[T]he whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing. 5 U.S.C. § 551(4) (2010). While state authorization of a hazardous waste program does have a

“future effect,” state authorization more clearly fits under the APA’s definition of an “order.”

The APA defines “order” as:

[T]he whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing. 5 U.S.C. § 551(6) (emphasis added). State authorization of a hazardous waste program by the

EPA falls under the definition of an “order” in the APA because it is a form of “licensing.”

Under the APA a “license” “includes the whole or a part of any agency permit, certificate,

approval, registration, charter, membership, statutory exemption or other form of permission.” 5

U.S.C. § 551(8) (emphasis added). In this case the EPA gave New Union permission to

implement its program by approving the program - the EPA deemed the program in accordance

with RCRA’s state program requirements. (Rec. doc. 2, p. 1). Furthermore, “the definition of

‘license’ in the APA is extremely broad.” Air N. Am. v. Dep’t of Transp., 937 F.2d 1427,

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1437 (9th Cir. 1991). Clearly, authorization of a state program falls under the definition of a

“license” and not under the APA definition of a “rule.”

Furthermore, Congress delegated jurisdiction for “rules” promulgated under RCRA to the

District of Columbia Court of Appeals. 42 U.S.C. § 6976(a) (2010). It delegated jurisdiction for

state authorization, along with “petitions” under RCRA to the Court of Appeals in the district

that the plaintiff resides. 42 U.S.C. § 6976(b). If Congress intended for state authorization to be

included in “rules,” there would be no need to decipher between the two when giving courts

jurisdiction. If this Court determines that state authorization is a rule, it will be in essence

granting jurisdiction to the District of Columbia Court of Appeals to hear all claims made

regarding review of any state authorization of a hazardous waste program. It is clear from

RCRA that Congress did not intend to give the District of Columbia Court of Appeals

jurisdiction over claims regarding EPA’s authorization of state programs.

CARE and EPA argue that EPA’s designation of the authorization of New Union’s

program as a “rule” should receive Chevron deference from the court in its determination

whether it was a “rule” or an “order” under the APA. See Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837 (1984). However, Chevron deference is only appropriate when

it can be concluded that Congress, implicitly or explicitly, delegated interpretive authority to an

agency. Mead Corp. v. United States, 533 U.S. 218, 240 (2001). Before Chevron deference

should be applied, a congressional delegation of administrative authority is required. Crandon v.

United States, 494 U.S. 152 (1990) (Scalia, J., concurring in the judgment). Courts have

consistently refused to defer to agency constructions of the APA. Air North America v. Dept. of

Transp. 937 F.2d 1427, 1437 (9th Cir. 1991); See, e.g., W.C. v. Bowen, 807 F.2d 1502, 1504

(9th Cir. 1987) (holding agency action in violation of the APA void, but not addressing

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Chevron); Go Leasing, Inc. v. Nat’l Transp. Safety Board, 800 F.2d 1514, 1522 (9th Cir. 1986)

(appearing to evaluate the agency's construction without deference); see also Air Transport Ass’n

of America v. Dept. of Transp., 900 F.2d 369, 372 (D.C. Cir. 1990) (invalidating an agency’s

rulemaking procedures under the APA), vacated on other grounds, 498 U.S. 1077 (1991);

American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1054 (D.C. Cir. 1987) (rejecting a proposed

agency interpretation); id. at 1058 (Mikva, J., concurring and dissenting). The EPA has not,

implicitly or explicitly, been delegated by Congress the authority to interpret the APA.

Therefore, the court should not grant the EPA Chevron deference when determining whether the

EPA’s approval of New Union’s hazardous waste regulatory program was a “rule” or an “order”

under the APA.

CARE and the EPA next argue that because the process of authorizing New Union’s

program included a notice and comment period and that the authorization was eventually

published in 40 C.F.R. § 272 means that it was, in fact, a “rule.” The fact that the EPA

conducted notice and comment procedures leading up to the authorization of New Union’s

program should not determine that the proceeding was a “rule” instead of an “order.” The

process of issuing EPA authorization of state programs is very similar to issuing individual

permits, which undoubtedly falls under the definition of a “license” of the APA, not a “rule.”

Individuals must submit applications to the Administrator for a permit to handle hazardous

material, the Administrator must make a determination whether that individual is in compliance

with the rules promulgated under RCRA, and the Administrator is allowed to revoke a permit if

he deems the particular facility is no longer in compliance with RCRA. See 42 U.S.C. § 6925

(2010). Likewise, the process for state authorization is very similar with the added requirement

for “notice and opportunity for public hearings.” See 42 U.S.C. § 6926 (2010). However, the

  11

mere provision of notice and comment does not transform a permit proceeding into rulemaking.

Many statutes require notice and comment procedures for actions other than rulemaking. See,

e.g., 33 U.S.C. § 1344(a) (requiring ‘notice and opportunity for public hearings’ for issuance of

individual permits regarding dredged or fill material). New Union strongly urges the court to

recognize that state authorization proceedings are virtually the same as individual permit

proceedings. Because they are so similar, it seems axiomatic that they would be defined the

same under the APA. Therefore, state authorization under RCRA is an “order” under the APA,

not a “rule.”

EPA should not be required under 40 C.F.R. § 271.23 to respond to any petition to

commence withdrawal proceedings of a state program. Courts will only enforce the Code of

Federal Registry if it is a reasonable interpretation of the underlying statutes. Chevron, 467 U.S.

83. Also, “publication of a statement of agency policy not required by a statute or the

Constitution and exempt from the rulemaking notice and comment procedures of the APA under

§ 553(b)(A) does not transform the agency policy into a judicially enforceable rule under any

controlling authority.” U.S. v. Fitch Oil Co., 676 F.2d 673, 676 n.4 (Emer. Ct. App. 1982).

Congress has not required the EPA to respond to every petition submitted asking the EPA to

commence withdrawal proceedings for state programs. See 42 U.S.C. § 6974. Such a

requirement would be an undue burden on the EPA as it should not be expected to respond to

every petition submitted to it. The EPA would potentially be required to respond to thousands of

petitions, resulting in the use of time and money, which would take away from the original

intention and purpose of RCRA.

Courts will refuse jurisdiction when a petition is not a challenge to the promulgation or

denial of a petition to promulgate any rule. Hazardous Waste Treatment Council v. U.S. E.P.A.,

  12

861 F.2d 277, 287-88 (D.C. Cir. 1988). In Hazardous Waste, the Environmental Defense Fund

petitioned the EPA, but the petition did not challenge any regulations actually promulgated.

EDF instead argued in its petition that the Agency should have promulgated a different rule. The

court refused jurisdiction stating that because EDF did not petition an actual promulgated rule,

the court did not have the power to rule the EPA to respond. Id. at 287. In our case, CARE’s

petition does not address an actual promulgated rule. This Court should, therefore, refuse

jurisdiction over this claim.

EPA’s decision not to respond to CARE’s petition constituted a discretionary action.

Congress has only required that the EPA respond to petitions regarding “rules.” Because

CARE’s petition regarded an “order,” the EPA could in its discretion determine whether it would

respond. The Court should, therefore, affirm the District Court’s ruling that it lacked jurisdiction

to hear this claim.

II. THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S RULING THAT IT LACKED JURISDICTION UNDER 28 U.S.C. § 1331 TO FORCE EPA TO ACT ON CARE’S PETITION. The District Court correctly granted summary judgment for New Union on the issue of

whether the court had jurisdiction to hear CARE’s claim under 5 U.S.C. § 553(e). The Court

does not have jurisdiction to hear this claim for two reasons: (1) Once again, the applicable

statute requires the petition to address a “rule,” not an “order,” (2) even if the APA did provide

CARE with a cause of action, the claim should be precluded because Congress has specifically

required the petition to address a “rule” under RCRA.

CARE asserts that the court has jurisdiction under 28 U.S.C. § 1331 claiming that the

EPA was required to respond to the petition as required by the APA under 5 U.S.C. § 553(e).

  13

(12th Cir. Order, C.A. No. 18-2010, C.A. No. 400-2010, at *2 (Sept. 29, 2010)). The statute

reads:

(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 5 U.S.C. § 553(e) (2010). Once again, New Union argues that this statute only requires agencies

to respond to petitions that regard “rules” under the APA. Because authorization of a state’s

hazardous waste program should be deemed an “order” under the APA, 5 U.S.C. § 553(e) in no

way requires the EPA to respond to CARE’s petition.

If the court were to find a cause of action under the APA, however, there is another

reason why it cannot hear this claim under the APA. Courts have consistently held that a citizen

complainant cannot bypass a requirement of the more specific statute by resorting to the APA

remedy. Allegheny County Sanitary Auth. v. E.P.A., 732 F.2d 1167, 1177 (3rd Cir. 1984).

Congress specifically laid out requirements in RCRA for a petition to meet in order for the EPA

be required to respond to that petition. “Any person may petition the Administrator for the

promulgation, amendment, or repeal of any regulation….” 42 U.S.C. § 6974 (emphasis added).

Congress specifically required that a petition to the EPA under RCRA must regard a “rule.”

That requirement is frustrated if a citizen complainant may bypass RCRA by resorting to the

APA remedy. See City of Highland Park v. Train, 519 F.2d 681, 690 (7th Cir. 1975). If

Congress intended for the EPA to respond to petitions that referred to any agency proceeding,

not just “rules,” then it would have said so when drafting RCRA.

Other courts have refused to allow plaintiffs to bypass the explicit requirements of the

Act established by Congress through resort to the APA. See Oregon Natural Res. Council v.

U.S. Forest Serv., 834 F.2d 842, 851 (9th Cir. 1987); Allegheny County, 732 F.2d at 1177. In

this case, CARE is attempting to bypass the requirements of RCRA by resorting to the APA.

  14

This court should affirm the District Court’s decision that the court lacks jurisdiction to hear

CARE’s complaint.

Furthermore, when courts are deciding whether there is substantive law to apply they

must first “careful[ly] examin[e]... the statute on which the claim of agency illegality is based.”

Webster v. Doe, 486 U.S. 592, 600 (1988)); see also Kirby Corp. v. Pena, 109 F.3d 258, 262 (5th

Cir. 1997). The court must consider the practical consequences of allowing review. Ellison v.

Connor, 153 F.3d 247, 252 (5th Cir. 1998). “[T]here must be a weighing of the need for, and

feasibility of, judicial review versus the potential for disruption of the administrative process.”

Bullard v. Webster, 623 F.2d 1042, 1046 (5th Cir. 1980). In this case, the statute on which the

claim is based only requires response from the agency to petitions regarding rules. The petition

only referred to an “order” from the EPA. If this Court determines that the EPA must respond to

such petitions, it will “disrupt the administrative process” because the EPA will be forced to

potentially respond to thousands of similar petitions. Such a disruption of the administrative

process severely outweighs any feasibility of judicial review. On these grounds as well, this

Court should affirm the District Court’s ruling.

III. THIS COURT SHOULD HOLD THAT EPA’S INACTION ON CARE’S PETITION DOES NOT CONSTITUTE A CONSTRUCTIVE ACTION OF ANY KIND AND THAT ACCORDINGLY, JUDICIAL REVIEW IS IMPROPER UNDER THE ADMINISTRATIVE PROCEDURE ACT AND THE RESOURCE CONSERVATION AND RECOVERY ACT.

Before the District Court, CARE argued that EPA constructively denied its petition to

commence proceedings to withdraw approval of New Union’s hazardous waste program and that

EPA constructively determined that New Union’s program met the proper criteria for approval.

(D.N.U. Order, Civ. 000138-2010, at *1 (June 2, 2010)). CARE founded this “constructive

  15

action” argument on Scott v. City of Hammond, where the court upheld a “constructive

submission” argument brought in a citizen suit under the Clean Water Act. Scott v. City of

Hammond, 741 F.2d 992 (7th Cir. 1984); (Id. at 5). The facts in Scott differ markedly from the

issues now before the court, and the constructive submission theory in Scott applies only to

specific permitting issues arising under the Clean Water Act. Accordingly, Scott has no bearing

on EPA’s oversight of New Union’s approved hazardous waste program.

In Scott, a citizen brought suit against the EPA under the Clean Water Act’s citizen suit

provision, 33 U.S.C. § 1365(a)(2), claiming that the EPA had failed to respond to the state of

Indiana’s constructive submission of Total Maximum Daily Load’s (TMDL) for discharge into

Lake Michigan. Scott, 741 F.2d at 994. The Clean Water Act requires states to submit to the

EPA for approval TMDL’s that “establish a maximum daily discharge of pollutants into a

waterway.” Id. at 996. Under the Act, Illinois and Indiana were required to submit TMDL’s to

the EPA within 180 days of December, 28 1978, and EPA was required to respond to their

submissions with approval or disapproval no later than thirty days after receipt. Id. Indiana did

not submit any “TMDL’s for discharges of pollutants into lake Michigan.” Id. The court held

that Indiana’s failure to submit TMDL’s could constitute a constructive submission, i.e. a

determination by the state that no TMDL’s were required, and that if proven on remand, the EPA

would have a non-discretionary duty to review the state’s constructive submission. Id. at 996-98.

The facts here clearly distinguish themselves from those set forth in Scott. First, CARE

propagates its constructive denial/determination theory under RCRA’s judicial review provision

and not its citizen suit provision. 42 U.S.C. § 6976; 42 U.S.C. § 6972(a)(2). The petitioner

appropriately sued under the Clean Water Act’s citizen suit provision in Scott because he

“alleged a failure of the Administrator to perform” a nondiscretionary duty under the act. 33

  16

U.S.C. § 1365(a)(2). However, CARE seeks an altogether different holding against the EPA –

that EPA’s failure to respond to its petition constituted a constructive act upon which judicial

review could be granted. (D.N.U. Order, Civ. 000138-2-010, at *5 (June 2, 2010)). While the

court in Scott does recognize a form of constructive action, it is an action of the state, not EPA,

and one that is strictly regulated by its governing statute. Scott, 741 F.2d at 996. CARE seeks a

determination by this Court of EPA’s constructive action in an altogether different statutory

setting where no strict timeliness requirements exist and a finding of a constructive

determination would go against Congress’s intent to implement specific administrative

proceedings where EPA seeks to withdraw approval of a state hazardous waste program. See 42

U.S.C. § 6926(e) (stating procedural requirements for commencement of withdrawal proceedings

of state authorization); 40 C.F.R. § 271.23(b)(1) (providing no specific time requirements for

response to petition for commencement of withdrawal proceedings). Moreover, subsequent case

law has further limited the scope of the holding in Scott by accepting only a narrow version of

the constructive submission theory where a “state’s actions clearly and unambiguously express a

decision to submit no TMDL for a particular impaired waterbody.” Hayes v. Whitman, 264 F.3d

1017, 1024 (10th Cir. 2001). Accordingly, Scott gives no authority to CARE’s constructive

denial/determination claim.

The case law is limited where plaintiffs have argued that agency inaction equates to a

constructive action, and where the issue arises, courts have abstained from creating rules outside

the parameters of governing statutes. In Village of Winnetka, Illinois v. Federal Energy

Regulatory Commission, the court upheld a plaintiff’s claim that the Federal Energy Regulatory

Commission (FERC) had constructively denied its application for rehearing of an administrative

complaint. Village of Winnetka, Illinois v. Federal Energy Regulatory Commission, 678 F.2d

  17

354 (D.C. Cir. 1982). However, the statute governing applications for rehearing specifically

provided for constructive denial where the FERC failed to respond to such an application within

thirty days. Village of Winnetka, 678 F.3d at 356; see 16 U.S.C. § 835l (a) (2010). Furthermore,

courts have held that a constructive action will not be inferred where a controlling statute does

not provide clear language indicating Congress’s intent to provide for such an action. Indeed,

the Supreme Court has analyzed the issue on these grounds, holding that no constructive action

occurred where the language of the governing statute clearly set forth a requirement of agency

action, and where statutory procedural requirements indicated Congress’s intent for agency

action in such proceedings. United States v. Bean, 537 U.S. 71 (2002). Lastly, in Consolidation

Coal Co. v. Donovan, the court refused to recognize a constructive action because the agency

had the administrative and procedural capacity to execute a meaningful decision. Consolidation

Coal Co. v. Donovan, 656 F.2d 910 (3rd Cir. 1981).

The language of the RCRA petition and judicial review statutes does not connote any

Congressional intent to provide for constructive action in regard to EPA’s withdrawal of

authorization of a state program. To the contrary, the statute provides the Administrator with an

extensive, and largely discretionary administrative apparatus with which to determine whether

commencement of withdrawal proceedings and withdrawal itself are appropriate regulatory

enforcement actions. First, unlike in Village of Winnetka, the statutes permitting petition of the

Administrator of the EPA under RCRA do not provide a constructive denial mechanism. See 42

U.S.C. § 6924(a); 40 C.F.R. § 271.23(b)(1). Moreover, the language of the RCRA statutes does

not provide any clear guidance on when a failure to respond would become a constructive denial.

Id. They only provide that the Administrator ought to respond “within a reasonable time.” 42

U.S.C. § 6924(a). Considering the magnitude of CARE’s request, and the potential impact it has

  18

on not only New Union’s hazardous waste program, but also on its economy as a whole, EPA’s

pending response has not become unreasonable. See MCI Telecomms. Corp v. FCC, 627 F.2d

322, 340 (D.C. Cir. 1980) (stating that “a reasonable time for an agency decision could

encompass … a year or two”).

Next, to hold that EPA made a constructive determination about the compliance of New

Union’s hazardous waste program would ignore Congress’s clear intent that such a determination

be made only after the exercise of the codified administrative procedures. Also, such a

constructive determination would violate EPA’s discretion in commencing enforcement actions.

The RCRA withdrawal of state program authorization statute requires the Administrator of the

EPA to hold a public hearing, provide a proper notice of deficiency, allow time for corrective

action, and give public notification for the reasons of withdrawal before officially withdrawing

any state program. 42 U.S.C. § 6926(e). Accordingly, Congress could not have intended such a

consequential determination be made where the EPA exhibits no action at all. The courts have

reinforced the magnitude of proceedings to withdraw authorization of a state program, labeling

such procedures as “extreme” and “drastic” measures. U.S. v. Power Eng’g Co., 303 F.3d 1232,

1238-39 (10th Cir. 2002) (quoting Waste Mgmt., Inc. v. EPA, 714 F.Supp. 340, 341 (N.D.Ill.

1989)). More importantly, determinations of whether a program complies with or fails to

comply with RCRA are discretionary with the EPA. In both the regulations for the petition for

commencement of withdrawal proceedings and in the withdrawal statute, the Administrator is

given discretion in determining when a state is not properly administering its hazardous waste

program. 42 U.S.C. § 6926(e) (“Whenever the Administrator determines…”); 40 C.F.R. §

271.22(a), 271.23(b)(1) (“The Administrator may…”); see Texas Disposal Systems Landfill v.

U.S. E.P.A, 377 F. App’x 406 (5th Cir. 2010). Allowing a determination to be made about the

  19

compliance of a state RCRA program based on a “constructive determination” would be

irreconcilable with EPA’s discretion to base the commencement of withdrawal proceedings on

its own investigation and expertise on the complex issues of hazardous waste management.

Through its “constructive denial” and “constructive determination” theories, CARE

attempts to bypass the clear procedural requirements and established discretionary role of the

EPA in commencing proceedings for the withdrawal of a state hazardous waste program. No

authority exists to uphold a determination that EPA’s inaction in regards to CARE’s petition

constituted a constructive action of any kind. Accordingly, where no agency action has

occurred, no substantive issue exists for review, making judicial review under the Administrative

Procedure Act and the Resource Conservation and Recovery Act improper. 5 U.S.C. §

701(a)(2); 42 U.S.C. § 6976(b).

IV. IF THE COURT GRANTS JURISDICTION AND DETERMINES THAT EPA’S FAILURE TO ACT ON CARE’S PETITION CONSTITUTED A CONSTRUCTIVE ACTION, THEN THE COURT SHOULD REMAND THE CASE BACK TO THE DISTRICT COURT TO ORDER EPA TO INITIATE AND COMPLETE PROCEEDINGS TO CONSIDER WITHDRAWAL OF ITS APPROVAL OF NEW UNION’S HAZARDOUS WASTE PROGRAM. The issues that CARE brings before the court concerning the authorization of New

Union’s hazardous waste program and EPA’s “constructive action” towards that program are not

ripe for judicial review under the ripeness doctrine developed by the Supreme Court in Abbot

Laboratories v. Gardner and further defined by Ohio Forestry Association Inc. v. Sierra Club.

Abbot Laboratories v. Gardner, 387 U.S. 136 (1967); Ohio Forestry Association Inc. v. Sierra

Club, 523 U.S. 726 (1998). In Abbot Laboratories, the Court presented the objectives of the

ripeness doctrine “to prevent the courts … from entangling themselves in abstract disagreements

over administrative policies,” and “to protect the agencies from judicial interference until an

  20

administrative decision has been formalized and its effects felt in a concrete way by the

challenging parties.” Abbot Laboratories, 387 U.S. at 148-49. The Court further established that

it must examine both the character of the action presented for review as well as the harm that

would result from declining to adjudicate when determining whether an agency action is ripe for

review. Id. at 149. Subsequently, the Court in Ohio Forestry Association, provided three

considerations to aid in determining the ripeness of an agency action:

(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial

intervention would inappropriately interfere with further administrative action; and (3)

whether the courts would benefit from further factual development of the issues

presented.

Ohio Forestry Association, 523 U.S. at 733. All three of these considerations disqualify the

“constructive action” that CARE claims EPA made from judicial review.

First, in Ohio Forestry Association, the Court held that delayed review would cause no

hardship to the plaintiff because the plaintiff would not be precluded from propagating their

interests through the administrative process, nor would they be precluded from bringing suit

again against more substantial agency action resulting from the administrative proceedings. Id.

at 733-34. The same logic applies to CARE. The administrative proceedings required for the

proper consideration of withdrawal of a state program provide for a public hearing and a period

for corrective action, where CARE’s interests could be addressed or even rectified. 42 U.S.C. §

6926(e). As a last resort, CARE’s interests could also be represented through another lawsuit

based more concretely on an actual action of the EPA, made amidst the administrative

proceedings. With multiple additional avenues to advance their interests, CARE would not face

undue hardship if it were found that judicial review is not proper. Second, where judicial review

  21

would prohibit an agency from implementing an administrative process that Congress clearly

intended to predicate an agency action, adjudication is not ripe. Ohio Forestry Association, 523

U.S. at 736. Congress exhibits a clear intent that state program authorization under RCRA not

be withdrawn without a lengthy and thorough administrative process. The RCRA withdrawal of

state authorization statute and accompanying regulations require notice to the state, public

hearing, allowance of time for corrective action, and publicly reported findings. See 42 U.S.C. §

6924(a); 40 C.F.R. § 271.23(b)(1). To disallow EPA this process would ignore Congress’s intent

that withdrawal of a state program not be considered outside of these codified administrative

requirements. Lastly, when considering whether the courts would benefit from further factual

development of the issues presented, “factual components” must be “fleshed out, by some

concrete action.” Ohio Forestry Association, 523 U.S. at 736-37 (quoting Lujan v. National

Wildlife Federation, 497 U.S. 871, 891 (1990)). The very nature of a “constructive action”

significantly limits the facts and “concrete action” that a court must have to sensibly review an

administrative action. CARE’s contention provides only EPA’s failure to respond to their

petition as reviewable material. Accordingly, more developed facts and concrete action are

necessary to make judicial review proper.

In considering the factors set forth in Ohio Forestry Association to determine the

application of the ripeness doctrine, EPA’s failure to respond to CARE’s petition is not ripe for

adjudication. Therefore, the stay should not be lifted in C.A. No 18-2010, and the case should be

remanded to the lower court.

V. NEW UNION’S PROGRAM MAY NOT BE WITHDRAWN BY THE EPA UNTIL EPA HOLDS A HEARING AND ALLOWS NEW UNION TO CORRECT ANY PERCEIVED DEFICIENCIES.

  22

EPA approved and authorized New Union’s hazardous waste program in 1986. (Rec.

doc. 2, p.1). Authorization cannot be rescinded unless the EPA finds that (1) the state program is

not equivalent to the federal program, (2) the state program is not consistent with federal or state

programs in other states, or (3) the state program is failing to provide adequate enforcement of

compliance in accordance with the requirements of federal law. See 42 U.S.C. § 6926(b), (e);

see also 40 C.F.R. § 271.22. With regards to New Union’s program, there have been no such

findings by the EPA.

Still, “[b]efore withdrawing a state’s authorization to administer a hazardous waste

program, the EPA must hold a public hearing and allow the state a reasonable period of time to

correct the perceived deficiency.” Harmon Indus. v. Browner, 191 F.3d 894, 898 (8th Cir. 1999)

(citing 42 U.S.C. § 6926(e)). No such hearing has occurred, and EPA has not notified New

Union of any perceived deficiency. EPA’s decision not to commence withdrawal proceedings is

a non-enforcement decision that is presumptively unreviewable. See Heckler v. Chaney, 470

U.S. 821, 821 (1985); Hinck v. United States, 550 U.S. 501, 504 (2007); Texas Disposal Sys.

Landfill, 377 Fed. App’x at 408. “The Administrator shall not withdraw authorization of any

such program unless he shall first have notified the State, and made public, in writing, the

reasons for such withdrawal.” 42 U.S.C. § 6926(e). The procedural requirements necessary for

EPA’s withdrawal of a state program have not been met; New Union’s hazardous waste program

may not be withdrawn until the required procedural requirements are satisfied. See 42 U.S.C. §

6926(e); Harmon Industries, at 898.

Although this established and required procedure has not been met, CARE still argues

that EPA must withdraw New Union’s program if the program fails to meet RCRA’s approval

criteria. (12th Cir. Order, C.A. No. 18-2010, C.A. No. 400-2010, at *3 (Sept. 29, 2010)).

  23

“Withdrawal of authorization for a state program is an ‘extreme’ and ‘drastic’ step that requires

the EPA to establish a federal program to replace the cancelled state program.” Power Eng’g

Co., 303 F.3d at 1238-39 (citing Waste Mgmt., Inc. v. EPA, 714 F. Supp. 340, 341 (N.D. Ill.

1989)). “Nothing in the text of the statute [42 USCS § 6926] suggests that such a step is a

prerequisite to EPA enforcement or that it is the only remedy for inadequate enforcement.”

Power Eng’g Co., 303 F.3d at 1238-39. Accordingly, even if EPA were to determine that New

Union’s program fails to meet RCRA’s approval and notify New Union of such findings,

because EPA has other remedies available to address any deficiency, EPA’s withdrawal of New

Union’s program is not mandatory. Id.

Congress intended the enforcement schemes and the objectives of the Clean Water Act

and RCRA to complement each other as a means of protecting the environment; accordingly,

CWA and RCRA provisions have been read together to effectuate Congress’ intent. See, e.g.,

Amoco Oil Co. v. United States EPA, 959 F. Supp. 1318, 1322 (D. Colo. 1997) (citing H.R. REP.

NO. 94-1491, reprinted in 1976 U.S.C.A.A.N. 6238, 6241-42) (“The structure of RCRA is

comparable to the CWA, as is Congress’s objective of creating an enforcement scheme which

allows the EPA to act rapidly to address hazardous waste problems.”). The CWA contains a

provision similar to U.S.C. § 6926(b).1 See 33 U.S.C. § 1342. The majority of courts analyzing

this CWA provision have held, that under the plain terms of the CWA, the decisions of whether

to hold a public hearing and whether to make a subsequent determination that a state is not

                                                                                                               1 (3) Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. 33 U.S.C. § 1342.  

  24

administering its program in accordance with the CWA are wholly discretionary exercises of the

EPA’s authority. See Sierra Club v. Whitman, 268 F.3d 898, 900-03 (9th Cir. 2001); Dubois v.

Thomas, 820 F.2d 943 (8th Cir. 1987); Sierra Club v. United States EPA, 377 F. Supp. 2d 1205

(N.D. Fla. 2005); Altman v. United States, 2004 U.S. Dist. LEXIS 28215, 2004 WL 3019171, at

*2 (W.D. N.Y. Dec. 30, 2004); Weatherby Lake Improvement Co. v. Browner, 1997 U.S. Dist.

LEXIS 14741, 1997 WL 687656, at *1 (W.D. Mo. Apr. 17, 1997); Johnson County Citizen

Comm’n for Clean Air & Water v. United States EPA, 2005 U.S. Dist. LEXIS 33190, at *11

(M.D. Tenn. Sept. 9, 2005). “Although the CWA mandates that the EPA Administrator ‘shall’

withdraw approval of a state’s ….program under certain circumstances, the mandatory duty to

withdraw approval arises only after the Administrator has determined that a state is not

administering its … program in compliance with federal standards.” Johnson County Citizen

Comm’n, at *11 (citing 33 U.S.C. § 1342(c)(3)) (emphasis added).

EPA has not made a determination that New Union’s program is out of compliance.

Without having made such a determination, the EPA has no non-discretionary or mandatory duty

to withdraw approval of New Union’s program. Heckler, at 821; Hinck, at 504; Texas Disposal

Systems Landfill, at 408; Whitman, at 900-03; Dubois, 820 F.2d 943; Sierra Club, 377 F. Supp.

2d 1205; Altman, at *2; Weatherby Lake Improvement Co., at *1; Johnson County Citizen, at

*11. As such, CARE’s argument that EPA must withdraw approval of New Union’s program

must fail as a matter of law.

VI. THIS COURT SHOULD HOLD THAT THE ISOLATED DEFICIENCY IN NEW UNION’S HAZARDOUS WASTE PROGRAM RELATED TO THE REGULATION OF WASTE FROM RAILROAD FACILITIES DOES NOT COMPEL THE EPA TO COMMENCE PROCEEDINGS FOR THE WITHDRAWAL OF AUTHORIZATION OF NEW UNION’S ENTIRE PROGRAM.

  25

CARE also argues that because the New Union Environmental Regulatory Adjustment

Act effectively withdraws railroad hazardous waste facilities from regulation, that EPA must

withdraw its approval of New Union’s hazardous waste program. (12th Cir. Order, C.A. No. 18-

2010, C.A. No. 400-2010, at *3 (Sept. 29, 2010)). This argument again overlooks the EPA’s

discretion in enforcing regulations and also fails to consider the multiple appropriate remedies

provided for by the Resource Conservation and Recovery Act. Therefore, this Court should hold

that an insufficiency in a state program does not place upon the EPA a non-discretionary duty to

withdraw authorization of an entire state regulatory program.

The United States EPA has discretion in its enforcement of RCRA, as provided both by

the plain meaning of RCRA’s enforcement statutes, and by judicial interpretation. In Heckler,

the Supreme Court reasserted a broad determination that an “agency’s decision not to prosecute

or enforce … is a decision generally committed to an agency’s absolute discretion.” Heckler,

470 U.S. at 831. In support of this contention, the Court stated:

… an agency decision not to enforce often involves a complicated balancing of a

number of factors which are peculiarly within its expertise. Thus, the agency must

not only assess whether a violation has occurred, but whether agency resources

are best spent on this violation or another, whether the agency is likely to succeed

if it acts, whether the particular enforcement action requested best fits the

agency's overall policies, and, indeed, whether the agency has enough resources

to undertake the action at all.

Id. Subsequently, the United States Court of Appeals for the Fifth Circuit in Texas Disposal

Systems Landfill v. U.S. E.P.A., found this standard from Heckler to correctly apply to EPA’s

determination whether to commence withdrawal proceedings under RCRA § 3006(e), 42 U.S.C.

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§ 6926(e), of Texas’ hazardous waste program. Texas Disposal Systems Landfill, 377 F. App’x

at 406. The court held that the phrase “whenever the Administrator determines” in the RCRA

withdrawal of state authorization statute granted EPA absolute discretion in commencing such

proceedings. Id. at 408. Correspondingly, EPA cannot be forced to make a determination about

the compliance of a state program. In making such a determination, EPA may consider the

agency-wide ramifications of pursuing an enforcement action and then decide whether pursuit of

such actions aligns with its available resources and overarching policies. It would clearly violate

EPA’s discretion if an isolated compliance issue triggered a mandatory withdrawal of an entire

program. As a result, here EPA must not withdraw New Union’s entire hazardous waste

regulatory program because of the changes made to regulation of hazardous waste from railroad

facilities.

Additionally, Congress could not have intended for isolated compliance issues to force

EPA to engage the lengthy and cumbersome administrative apparatus required for the

commencement and performance of proceedings to withdraw authorization of a state program.

The different enforcement procedures and remedies available under RCRA exhibit that Congress

foresaw the need to provide the EPA with enforcement measures better suited to ameliorating

insufficiencies in state programs instead of terminating the programs altogether. In the

legislative history, Congress noted its intention to provide the EPA with oversight authority to

address both specific compliance issues as well as to consider the compliance of entire state

programs. See H.R. REP. NO. 94-1491(I) at 6269-70 (1976). This intention was codified giving

EPA authority to issue compliance orders where deficiencies exist in a state program or to

conduct proceedings to determine whether to withdraw authorization of a program. 42 U.S.C. §

6928(a)(2) (2010), 42 U.S.C. § 6926(e). The compliance order provision states:

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(2) In the case of a violation of any requirement of this subchapter where such

violation occurs in a State which is authorized to carry out a hazardous waste

program under section 6926 of this title, the Administrator shall give notice to the

State in which such violation has occurred prior to issuing an order or

commencing a civil action under this section.

42 U.S.C. § 6926(e). Where Congress so directly authorized EPA to address deficiencies

in state programs by either the compliance order method or by the withdrawal

proceedings method, compelling the EPA to commence withdrawal proceedings, as

CARE petitions to do, directly contradicts Congress’s attempt to provide the EPA with

enforcement authority less drastic than proceedings to withdraw an entire state program.

Presence of the compliance order provision demonstrates that EPA should be given the

authority Congress intended by this court in pursuing an enforcement remedy that takes

into account the diverse demands of the EPA, New Union and its citizens.

By arguing for the immediate de-authorization of New Union’s hazardous waste program

based on the changes made to New Union’s regulation of railroad facilities, CARE again

attempts to overstep the clear boundaries and procedures provided by RCRA and its judicial

interpretations. In response, this Court should reinforce the authority of RCRA and of the EPA

as its administrative agency by holding that an isolated deficiency in a state program does not

compel EPA to commence withdrawal of state authorization proceedings under 42 U.S.C. §

6926(e).

VII. NEW UNIONS ERAA AMENDMENT DOES NOT ADVERSELY EFFECT THE EQUIVALENCY OF THE STATE PROGRAM WITH THE FEDERAL PROGRAM, IS NOT INCONSISTENT WITH THE FEDERAL OR OTHER APPROVED STATE PROGRAMS, AND DOES NOT VIOLATE THE COMMERCE CLAUSE.

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“The Commerce Clause ‘directly limits the power of the States to discriminate against

interstate commerce.’” New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273 (1988).

Though, “[t]he commerce clause is in no sense a limitation upon the power of Congress over

interstate and foreign commerce.” Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 423 (1946).

“The burden to show discrimination rests on the party challenging the validity of the

[legislation].” Hughes v. Oklahoma, 441 U.S. 322, 336 (1979) (citing Hunt v. Washington Apple

Advertising Comm’n, 432 U.S. 333, 353 (1977)). The plaintiff in this case, CARE, argues that

the ERAA’s treatment of Pollutant X makes New Union’s program not equivalent to the federal

program, inconsistent with the federal program and other approved state programs, and in

violation of the Commerce Clause. (12th Cir. Order, C.A. No. 18-2010, C.A. No. 400-2010, at

*3 (Sept. 29, 2010)). Though, CARE can offer no evidence that New Union’s ERAA legislation

discriminates against interstate commerce; accordingly, CARE has failed to meet this burden.

Albeit, if this court finds that CARE can demonstrate discrimination against commerce,

“the burden [then] falls on the State to justify it both in terms of the local benefits flowing from

the [legislation] and the unavailability of nondiscriminatory alternatives adequate to preserve the

local interests at stake.’” Hughes, at 336.

Congress gave EPA the authority to interpret the term “consistent;” accordingly, EPA has

interpreted the term “consistent” in 40 C.F.R. § 271.4 to prevent unreasonable restrictions or

impediments in authorized programs. See 50 Fed. Reg. 46,439 (Nov. 8, 1985). This Court

should consider EPA’s construction of RCRA and conclude that the pertinent standard for

regulation by a state respecting interstate waste is the reasonableness standard of 40 C.F.R. §

271.4(a) as explained at 50 Fed. Reg. 46,439. See Chevron, at 843.

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EPA has determined that “all relevant factors” must be considered in assessing the

permissibility of state laws with interstate effects. 50 Fed. Reg. 46,439. EPA has also

determined that in applying 40 C.F.R. § 271.4(a) to State laws and regulations, EPA should look

to whether the State provision in fact has or is likely to have a significant adverse effect on the

flow of hazardous waste into or out of the State. 50 Fed. Reg. 46,437 (Nov. 8, 1985).

Notably, there are only nine Pollutant X treatment and disposal facilities in the entire

country presently authorized by EPA under RCRA. (Rec. doc. 4 for 2000, pp. 105-107). None

of those facilities are located in New Union. Id. New Union’s amendment precluding any new

permits allowing the treatment, storage, or disposal of Pollutant X will have no significant

adverse effect on the flow of hazardous waste into or out of the State. 50 Fed. Reg. 46,437.

Since no such facilities currently exist in New Union, the preclusion of issuing permits that

authorize new facilities to be constructed will consequently have no adverse effect. Id.

More, RCRA expressly contemplates that states will enter into compacts for “cooperative

effort and mutual assistance for the management of hazardous waste.” 42 U.S.C. § 6904(b)(1)

(2010). Where another state is (and has been) accepting, treating, and disposing of Pollutant X

generated in New Union, a cooperative effort among states should be implied. Such authorized

cooperation between states should limit this court finding any interstate commerce violation.

Sporhase v. Nebraska, 458 U.S. 941, 960 (1991) (quoting New England Power Co. v. New

Hampshire, 455 U.S. 331, 343 (1982)) (“[T]he fact that Congress has been willing to let the

States settle their differences over [hazardous wastes] through mutual agreement [does not]

constitute…persuasive evidence that Congress consented to the unilateral imposition of

unreasonable burdens on commerce.”). Nonetheless, “[courts] should be particularly hesitant to

interfere with [state government’s] efforts under the guise of the Commerce Clause because

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waste disposal is both typically and traditionally a local government function.” United Haulers

Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 344 (2007).

New Union’s ERAA legislation is enforced under state law; the ERAA legislation

comprises New Union’s state program operating in lieu of the Federal program. Mere revision to

a state program does not require EPA to withdraw New Union’s approved status:

If an authorized State adopts restrictions or impediments that may affect the flow of

hazardous wastes, EPA may find that such changes are significant revisions to the State’s

program and provide public notice and comment under [C.F.R.] § 271.21 on their

potential impacts on interstate transportation of wastes. If the restrictions or impediments

are found to be unreasonable, they would be grounds for withdrawal of the authorized

program under [C.F.R] § 271.22.

50 Fed. Reg. 46,440 (Nov. 8, 1985). Once a state program like New Union’s is approved, that

program may be revised. See 40 C.F.R. §271.21(a).2 Once approved, the State “is authorized to

carry out [its] program in lieu of the Federal program,” 42 U.S.C. § 6926(b) (emphasis added),

unless and until EPA withdraws authorization of the program as a whole. 42 U.S.C. § 6926(e)

(emphasis added). Thus, if EPA were to determine that New Union’s ERAA legislation were to

place unreasonable restrictions on interstate commerce, EPA should follow the procedural

                                                                                                               2 “Program revision may be necessary when the controlling Federal or State statutory or regulatory authority is modified or supplemented.” 40 C.F.R. § 271.21 (a) (emphasis added). Still, RCRA does not require a State to develop a state hazardous waste program. If a State does develop such a program, the State may enforce the requirements of its program as a matter of state law, whether or not the program receives EPA authorization. See 42 U.S.C. § 6926; Power Eng’g Co., at 1059 (Because the administration of state authorized programs, and the enforcement of state regulations are addressed in separate clauses, the structure of section 6926(b) indicates Congress’s intent that administration and enforcement are not “inexorably intertwined.”). Of course, EPA’s authorization of a state program pursuant to RCRA allows the federal government to enforce the state permitting requirements under federal law. 42 U.S.C. § 6926(d).

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requirements of 42 U.S.C. § 6926 before withdrawing New Union’s program’s authorization.

See supra issue #5 discussion.

Still, CARE may attempt to argue that ERAA amounts to New Union seeking economic

protectionism, and thus CARE may argue that ERAA violates the commerce clause. “The

negative or dormant Commerce Clause ‘prohibits economic protectionism - that is, regulatory

measures designed to benefit in-state economic interests by burdening out-of-state competitors.’”

Limbach, 486 U.S. at 273-274.

Where simple economic protectionism is effected by state legislation, a virtually per se

rule of invalidity has been erected. City of Philadelphia v. New Jersey, 437 U.S. 617, 624

(1978). The clearest example of such legislation is a law that “overtly blocks the flow of

interstate commerce at a State's borders.” Id. (emphasis added). To the contrary, New Union’s

ERAA legislation clearly allows “[a]ny person [to] transport Pollutant X through or out of the

state to a facility designed and permitted to treat or dispose of Pollutant X….” (Rec. doc. 4 for

2000, pp. 105-107) (emphasis added). More, federal law requires that transporters of hazardous

waste3 comply with regulations establishing standards as may be necessary to protect human

health and the environment. 42 U.S.C. § 6923(a). In line with federal standards, New Union’s

ERAA legislation requires transporters to transport Pollutant X “as direct and fast as is

reasonably possible” in order to protect human health and the environment. (Rec. doc. 4 for

2000, pp. 105-107) (emphasis added). Notably, ERAA does not require solely in-state

                                                                                                               3  Hazardous waste means a substance or material in a quantity and form which may pose an unreasonable risk to health and safety or property when transported in commerce. 49 U.S.C. §§ 5102(2); 5103(a).  

  32

companies or New Union public entities to transport Pollutant X from New Union to an

authorized facility; in this regard ERAA does not violate the commerce clause.4

Where legislative objectives are credibly advanced by a state and there is no patent

discrimination against interstate trade, the Court has adopted a much more flexible approach to

commerce clause analysis - the general contours of which were outlined by the United States

Supreme Court in Pike v. Bruce Church, Inc.

Where the statute regulates even-handedly to effectuate a legitimate local public interest,

and its effects on interstate commerce are only incidental, it will be upheld unless the

burden imposed on such commerce is clearly excessive in relation to the putative local

benefits. If a legitimate local purpose is found, then the question becomes one of degree.

And the extent of the burden that will be tolerated will of course depend on the nature of

the local interest involved, and on whether it could be promoted as well with a lesser

impact on interstate activities. Occasionally the Court has candidly undertaken a

balancing approach in resolving these issues, but more frequently it has spoken in terms

of “direct” and “indirect” effects and burdens.

Pike v. Bruce Church, 397 U.S. 137, 142 (1970) (internal citations omitted). Pollutant X is said

by EPA and the World Health Organization to be among the most potent, toxic chemicals to

                                                                                                               4 A long line of case precedent distinguishes commerce clause violations on the basis of in-state versus out-of-state operations. See South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82 (1984) (invalidating Alaska regulation requiring all Alaskan timber to be processed in-state prior to export); Toomer v. Witsell, 334 U.S. 385 (1948) (invalidating South Carolina statute requiring shrimp fishermen to unload, pack, and stamp their catch before shipping it to another State); Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) (invalidating a Louisiana statute prohibiting the export of shrimp unless the heads and hulls had first been removed within the State); Johnson v. Haydel, 278 U.S. 16 (1928) (invalidating analogous Louisiana statute for oysters); Minnesota v. Barber, 136 U.S. 313 (1890) (invalidating Minnesota law requiring any meat sold within the State to be examined by an in-state inspector); Dean Milk Co. v. Madison, 340 U.S. 349 (1951) (invalidating local ordinance requiring all milk sold in the city to be pasteurized within five miles of the city center).  

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public health and the environment – so toxic that only nine treatment and disposal facilities in the

entire country are authorized by EPA under RCRA to treat or dispose of Pollutant X. (Rec. doc.

for 2000, pp. 105-107). Due to Pollutant X’s potency and toxicity, New Union’s goal of

“minimizing the generation of Pollutant X” is clearly a legitimate local purpose. Id. Due to the

danger Pollutant X poses, New Union’s ERAA legislation seeks to transport Pollutant X “as

direct and fast as is reasonably possible” to a proper, authorized facility. Id. New Union’s

ERAA legislation does not impose a clearly excessive burden in relation to the putative local

benefits – of merely transporting a very potent and toxic chemical to a proper facility as quickly

as reasonably possible. Pike, 397 U.S. at 142.

RCRA intended that State programs be generally uniform for purposes of encouraging

proper treatment and disposal and EPA has interpreted this consistency requirement to deny

authorization where restrictions or impediments are unreasonable. It does not require EPA to

deny authorization (or withdraw authorization) merely because in-State and out-of-State wastes

are regulated somewhat differently by the State.

CONCLUSION

For the forgoing reasons, New Union respectfully requests that this Court affirm the

district court’s grant of summary judgment on all claims.

Respectfully Submitted

________________________

Counsel for New Union