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CA. NO. 18-2010
UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT
CITIZEN ADVOCATES FOR REGULATION AND THE ENVIRONMENT, INC.
Petitioner-Appellant-Cross-Appellee, v.
LISA JACKSON, ADMINISTRATOR,
U.S. Enviornmental Protection Agency Respondent-Appellee-Cross-Appellant
v.
STATE OF NEW UNION
Intervenor-Appellee-Cross-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION
BRIEF FOR APPELLANT
CIZITEN ADVOCATES FOR REGULATION AND THE ENVIRONMENT,
INC.
Attorney for the Appellant
Citizen Advocates for Regulation and the Environment, Inc.
i
TABLE OF CONTENTS
Page
ISSUE STATEMENT.................................................................................................................... ii
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF THE FACTS.................................................................................................... 2
SUMMARY OF THE ARGUMENT............................................................................................. 4
STANDARD OF REVIEW.............................................................................................................4
ARGUMENT
THE LOWER COURT ERRED IN ITS DECISION THAT THIS COURT LACKED JURISDICTION TO HEAR THE PETITION FILED BY CARE AND IN GRANTING NEW UNION’S MOTION TO DISMISS......................................................................... 5
EPA'S FAILURE TO ACT ON CARE'S PETITION TO INITIATE PROCEEDINGS TO REVIEW NEW UNION'S HAZARDOUS WASTE PROGRAM CONSTITUTED A CONSTRUCTIVE DENIAL AND IS SUBJECT TO JUDICIAL REVIEW UNDER RCRA § 7006(B)............................................................................................................... 9
THIS COURT SHOULD LIFT THE STAY IN C.A. NO. 18-2010 AND PROCEED WITH JUDICIAL REVIEW OF EPA'S CONSTRUCTIVE DENIAL OF CARE'S PETITION UNDER RCRA 7006(B). ............................................................................. 19
EPA MUST WITHDRAW ITS APPROVAL OF NEW UNION’S PROGRAM BECAUSE ITS RESOURCES AND PERFORMANCE FAIL TO MEET RCRA’S APPROVAL CRITERIA................................................................................................. 22
APPROVAL OF NEW UNION’S PROGRAM MUST BE WITHDRAWN BY EPA BECAUSE NEW UNION’S 2000 ENVIRONMENTAL REGULATORY ADJUSTMENT ACT (“ERAA”) WITHDRAWS RAILROAD HAZARDOUS WASTE FACILITIES FROM ANY REGULATION....................................................................27
EPA MUST WITHDRAW ITS APPROVAL OF NEW UNION'S PROGRAM BECAUSE 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.................................................................................. 31
CONCLUSION.......................................................................................................................... 33
APPENDIX................................................................................................................................. A
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Page
Abbott Lab. v. Gardner, 387 U.S. 136 (1967) ………………………………………………........... 5, 6, 7, 8, 21 Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)……………………………………………………….........…… 4 Arkansas Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994) ………………………………………………………..... 24 Ashoff v. City of Ukiah, 130 F.3d 409 (1997) ……………………………………………………….............. 27 Brower v. Evans, 257 F.3d 1058 (9th Cir.2001) ………………………………………………………... 9 Burlington N. and Santa Fe Ry. Co. v. Grant, 505 F.3d 1013 (2007) ………………………………………………………............ 29 California v. Walters, 751 F.2d 977 (9th Cir. 1984) ………………………………………………………... 32 California Dept. of Toxic Substances Control v. Interstate Non-Ferrous Corp., 298 F.Supp.2d 930 (E.D.Cal.2003) ………………………………………………..… 30 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).………………………………………………………................ 4 Chambers Med. Tech. of S. Carolina, Inc. v. Bryant, 52 F.3d 1252 (4th Cir. 1995) ………………………………………………………... 33 Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334 (1992) ……………………………………………………….............. 32 Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984) ………………………………………………………...19, 20, 22
iii
City of Chi. v. Envt’l Def. Fund, 948 F.2d 345 (7th Cir. 1991) …………………………………………..............…...…. 4 Clement Kiln Recycling Coalition v. EPA, 493 F.3d 207 (2007) ………………………………………………………................20 Columbia Broad. Sys. v. United States, 316 U.S. 407 (1942) ………………………………………………………................. 5 Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) ………………………………………………………...16 Dague v. City of Burlington, 935 F.2d 1343 (2d. Cir. 1991) ……………………………………………………….. 29 Davis v. Sun Oil Co., 148 F.3d 606 (1998) ………………………………………………………..............6, 8 Families for Freedom v. Napolitano, 628 F.Supp.2d 535 (S.D.N.Y. 2009) ……………………………………………..…9, 13 Freier v. Westinghouse Elec. Corp., 303 F.3d 176 (2002) ………………………………………………………............... 32 Friends of the Earth v. Carey, 535 F.2d 165 (2d. Cir. 1976) ………………………………………………………... 23 Gibbons v. Ogden. 19 U.S. 448 (1821) ………………………………………………………................ 32 Glazer v. American Ecology Env’t Serv. Corp., 894 F.Supp. 1029 (U.S.D.C. Eastern District of Texas 1995) ………………….…23, 24, 25 Green v Bock Laundry Mach. Co., 490 U.S. 504 (1989) ………………………………………………………................ 7 Greenpeace, Inc. v. EPA, 43 F.3d 701 (1995) ………………………………………………………..................20 Greenpeace, Inc. v. Waste Tech. Indus., 9 F.3d 1174 (1994) ………………………………………………………..................21 Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) ………………………………………………………................. 7
iv
Hazardous Waste Treatment Council v. Reilly, 938 F.2d 1390 (1991) ………………………………………………………............. 28 In re Am. Rivers & Idaho Rivers United, 372 F.3d 413 (2004) ……………………………………………………............ 11, 16 In re Barr Lab., Inc., 930 F.2d 72 (D.C. Cir. 1991) ……………………………………………………. 17, 18 In re Commc’n, Inc., 531 f.3d 849 (D.C. Cir. 2008) ……………………………………………………11, 12 In re Int’l Chemical Workers Union, et al., 958 F.2d 1144 (1992) ………………………………………………………..............16 In re Monroe Commc’n Corp., 840 F.2d 942 (D.C. Cir. 1988) ………………………………………………………. 18 Independence Mining Co. v. Babbit, 105 F.3d 502 (Nev. 1997) …………………………………………………………....12 Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) ……………………………………………………….16 Muwekma Tribe v. Babbit, 133 F. Supp.2d 30 (D.C. Cir. 2000) ……………………………………………14, 17, 18 Oil Chemical and Atomic Workers Int’l Union v. Zeeger, 768 F.2d 1480 (1985) ………………………………………………………..............15 Oregon Waste Systems, Inc. v. Dept. of Envtl. Quality, 511 U.S. 93 (1994) ………………………………………………………..................33 Parola v. Weinberger, 848 F.2d 956 C.A. 9 (Cal.1988) ……………………………………………………….32 Potomac Elec. Power Co. v. Interstate Commerce Comm’n, 702 F.2d 1026 (1983) …………………………………………………...…...............10 Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (1983) ……………………………………………….....…….......14, 15 Public Citizen Health Research Group v. Comm’r of Food and Drug,
v
740 F.2d 21 (1984) ………………………………………………………..................18 Salve Regina Coll. v. Russell, 499 U.S. 225 (1991) ……………………………………………………….................4 Save the Valley, Inc. v. EPA, 223 F.Supp.2d 997 (S.D.Ind. 2002) ……………………………………………26, 27, 28 State of Washington, Dept. of Ecology v. EPA, 752 F.2d 1465 (1985) ………………………………………………………..............21 Tafflin v. Levitt, 493 U.S. 455 (1990) ………………………………………………………..................6 Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ……………………………………8, 9, 10, 12, 14, 16, 18 Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527 (10th Cir. 1994) ……………………………………………….………....4 U.S. v. Alisal Water Corp., 326 F.Supp.2d 1010 (N.D. Cal., 2002) …………………………………………………25 U.S. v. Elias, 269 F.3d 1003 (9th Cit. 2001) …………………………………………………….......32 U.S. v. Lopez, 514 U.S. 549 (1995) ………………………………………………………................32 U.S. v. MacDonald & Wilson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991) ……………………………………………………….......32 U.S. v. Morrison, 529 U.S. 598 (2000) ………………………………………………………................32 U.S. v. Price, 688 F.2d 204 (3d Cir. 1982) ……………………………………………………….....29 Wellesley v. F.E.R.C., 829 F.2d 275 (1st Cir.1987) ……………………………………………………….......9 Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990) ……………………………………………………….................6
vi
STATUTES AND LEGISLATIVE HISTORY
98 Cong. Rec. H 2867……………………………………………………….........12, 14
40 C.F.R. § 271.14………………………………………………………...................31
40 C.F.R. § 271.16………………………………………………………...................31
5 U.S.C. § 551………………………………………………………...........................5
42 U.S.C. § 6925……………………………………………………….....................13
42 U.S.C. § 6926……………………………………………………….................2, 20
42 U.S.C. § 6927……………………………………………………….....................13
42 U.S.C. § 6972……………………………………………………….........23, 24, 25
42 U.S.C. § 6974……………………………………………………….....................23
42 U.S.C. § 6976……………………………………………………….....................20
47 U.S.C. § 205………………………………………………………........................9
A.P.A. § 553………………………………………………………...................1, 7, 23
R.C.R.A. § 1003………………………………………………………......................26
R.C.R.A. § 3006…………………………………..........1, 2, 11, 12, 17, 22, 24, 31, 32
R.C.R.A. § 7002…………………………………........1, 2, 4, 5, 6, 7, 8, 23, 25, 27, 28
R.C.R.A. § 7004………………………………………………………........1, 2, 5, 7, 8
R.C.R.A. § 7006………………………………………………..........1, 8, 9, 19, 20, 22
FEDERAL RULES
Fed. R. Civ. P. 24…………………………………………………………………......2
Fed. R. Civ. P. 56(c) ……………………………………………………………….....4
1
ISSUE STATEMENT
Did the lower court err in the decision that this Court lacked jurisdiction to hear the petition
filed by CARE and in granting New Union’s motion to dismiss? Jurisdiction under the RCRA §
7002(a)(2) of CARE’s petition filed pursuant to RCRA § 7004 and 28 U.S.C. § 1331 for the
petition filed under 5 U.S.C. § 553(e) is appropriate for this court. As jurisdiction is appropriate,
the substantive issues before this court are:
I. Whether EPA’s failure to act on CARE’s petition to initiate proceedings to withdraw
approval of New Union’s hazardous waste program under RCRA § 3006(e) constituted
constructive denial and a constructive determination that the program continued to meet
RCRA criteria under RCRA § 3006(b) and subject to judicial review under RCRA §§
7002(a)(2) and 7006(b);
II. Whether this Court should lift the stay in C.A. No. 18-2010 and proceed with judicial
review of EPA’s constructive actions or remand the case to the lower court to order EPA
to initiate and complete proceedings to withdrawal approval of New Union’s program;
III. Must EPA withdraw its approval of New Union’s program because its resources and
performance fail to meet RCRA’s approval criteria;
IV. Must EPA withdraw its approval of New Union’s program because the New Union 2000
Environmental Regulatory Adjustment Act effectively withdraws railroad hazardous
waste facilities from regulation; and
V. Must EPA withdraw its approval of New Union’s program because the New Union 2000
Environmental Regulatory Adjustment Act renders New Union’s program not equivalent
to the RCRA program, inconsistent with the federal program and other approved state
programs, or in violation of the Commerce Clause?
2
STATEMENT OF THE CASE
Citizen Advocates for Regulation and the Environment, Inc. (“CARE”) served a petition
on Lisa Jackson, Administrator of the Environmental Protection Agency (“EPA”) on January 5,
2009, pursuant to section 7004 of the Resource Conservation and Recovery Act ("RCRA"),
requesting that the Agency commence proceedings to withdraw its approval of New Union’s
hazardous waste program (R. at 4). On January 4, 2010, CARE filed an action in the United
States District Court for the District of New Union pursuant to RCRA § 7002(a)(2), seeking an
injunction to require EPA to act on that petition or judicial review of EPA's constructive denial
of the petition and its constructive determination that New Union's Hazardous Waste program
presently meets federal standards (R. at 4).
New Union filed an unopposed motion to intervene pursuant to the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 24. CARE filed a simultaneous action in the New Union Court of
Appeals on the same grounds as this federal action (R. at 5). New Union also filed an unopposed
motion to intervene in the state case, which the court granted (R. at 5). EPA made a motion,
which was granted, to stay the state proceedings, pending the outcome of this litigation. The
parties filed cross motions for summary judgment in the District Court for New Union, which
were granted. This action follows.
STATEMENT OF THE FACTS
In 1976, Congress enacted RCRA, which gave EPA the authority to control hazardous
waste from creation to destruction. Pursuant to RCRA § 3006(b), 42 U.S.C. 6926(b), a State
may administer and enforce a hazardous program so long as the State program is found to be
equivalent to the federal program. In 1986, EPA approved New Union's hazardous waste
3
program for operation in lieu of the federal program (R. at 5). At that time, New Union’s
program met all of the RCRA's statutory requirements and EPA's regulatory criteria (R. at 5).
Since the program's approval, resources devoted to the program have shrunk due to
economic decline, while the demand on the program’s resources has increased (R. at 5).1 Prior to
the program's initial approval, EPA recognized that with fewer resources available to the
program, it would probably be inadequate (R. at 10). New Union reported the decline of
resources and the increased demand for permit approval in its annual report to EPA (Rec. doc. 4
for 2009, p. 19, 20).
In 2000, the New Union legislature enacted the Environmental Regulatory Adjustment
Act ("ERAA"), which contained a number of amendments to existing environmental legislation
(R. at 11). One particular amendment, made to the Railroad Regulation Act ("RRA"),
transferred regulatory responsibility for the State’s hazardous waste program to the newly
established New Union Railroad Commission (R. at 12). This amendment further eliminates
criminal sanctions for violations of environmental statutes for those facilities operating within
the commission's jurisdiction (R. at 12). The second relevant amendment severely restricts the
generation and transportation of Pollutant X. Additional facts to be supplied during argument.
1DEP'S 2009 Annual Report to EPA indicated that 900 TSDs had permits that were extended by law, but had actually expired over 20 years ago. DEP also reported that it receives about 50 applications for new facilities each year and that its permit processing priority is as follows: new facilities; permitted facilities seeking to expand operations; facilities with permits that expired 15 or more years ago; and permitted facilities posing the greatest harm to public health. DEP issued 125 RCRA permits the previous year and anticipated issuing the same amount during 2009.
4
SUMMARY OF ARGUMENT
CARE contends that this Court, having jurisdiction over this action pursuant to RCRA §
7002 and federal question jurisdiction pursuant to 28 U.S.C. § 1331, should proceed to review of
the merits of the case and of EPA's constructive denial of CARE's citizen suit petition. Further, it
is CARE's position that New Union's hazardous waste program has been operating below federal
guidelines for quite some time, and that the 2000 ERAA Amendments serve to place New
Union's hazardous waste program in a position where it is even less compliant with federal
standards than ever before. Based on this principle, as well as others discussed below, CARE
asks this Court to find that the EPA wrongly denied CARE's petition and to issue a decision that
would recognize New Union's program as incompliant.
STANDARD OF REVIEW
An appellate court reviews a lower court's decision using the standard de novo, a standard
of review in which no form of appellate deference is acceptable. Salve Regina Coll. v. Russell,
499 U.S. 225, 238 (1991). During appellate review, “summary judgment is appropriate if there is
no genuine issue as to any material fact.” Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22
F.3d 1527, 1529 (10th Cir. 1994) (quoting Fed. R. Civ. P. 56(c)). The part moving for judgment
bears the burden of proof to show that there is no material fact at issue.” Id. (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court examines the facts and the record in the
light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-
59 (1970). “The court seeks to determine whether the record as a whole supports a finding that
there was no issue of material fact. City of Chi. v. Envt’l Def. Fund, 948 F.2d 345, 347 (7th Cir.
1991).
5
ARGUMENT
I. THIS COURT HAS JURISDICTION TO HEAR THIS CASE PURSUANT TO RCRA § 7002 AND 28 U.S.C. § 1331.
A. This Court has jurisdiction to hear this case pursuant to RCRA § 7002.
RCRA § 7002(a)(2) and (a)(1)(b) provide this Court with jurisdiction to hear CARE’s
petition, filed under RCRA § 7004. Section 7002 provides as follows: “Any action brought
under paragraph (a)(2) of this subsection may be brought in the district court for the district in
which the alleged violation occurred.” New Union argues that jurisdiction does not extend to
this Court because CARE’s petition fails to address an appropriately appealable action under
RCRA § 7004. EPA contests jurisdiction for review on the grounds that the applicable statute
does not require administrative action, due to Congressional intent.
Final agency actions are subject to review in federal court. Abbott Lab. v. Gardner, 387
U.S. 136, 149 (1967). An agency’s final action includes “any rule defined by the Act as an
agency statement of general or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy.” Id. (citing 5 U.S.C. § 551(4),(13)). Courts dealing with
the judicial review of administrative actions interpret the ‘finality’ element practically, rather
than theoretically. Id. at 149. In Abbott, the court recognized that while the Federal
Communications Commission ("FCC") did not possess direct authority to regulate local
contracts, a violation of an FCC regulation that prevented such contracts appropriately sustained
review in federal court. Id. at 150 (citing Columbia Broad. Sys. v. United States, 316 U.S. 407).
Similarly, while New Union may correctly resist federal intervention in the State’s affairs,
CARE’s suit involves the enforcement of federal regulations in a state setting.
6
The Supreme Court identified several factors for determining whether an agency action is
final and thus reviewable. Abbott, 387 U.S. 136, 151. One such consideration involves the
manner the agency promulgated the regulation. Id. The court determined that a regulation
promulgated in a formal manner, announced in the Federal Register, and commented on by
interested parties, is “quite clearly definitive.” Id. Additionally, the court noted that where there
is no suggestion that a regulation is informal, or issued by a subordinate official, a court will
likely designate the regulation as a final agency action. Id. It is clear from Abbott, that a
subordinate official did not make the ruling and that the agency had direct authority to enforce
the regulation by means of passing upon applications for clearance of new drugs or certifications
of certain antibiotics, much as EPA has direct authority over RCRA permits. Id. at 151-52.
Finally, the court in Abbott, considered the regulation’s impact on the petitioners. Id. at
152. Judicial review is appropriate if the regulation’s impact sufficiently and immediately affect
petitioners. Id. at 152. In Abbott, the court determined the regulation directly affected
petitioners' business and potentially exposed them to civil and criminal penalties. Id. In the
present case, the citizens of New Union face immediate harm to their environment and potential
personal injury from New Union’s inadequate waste program and EPA’s failure to ensure that
the State’s hazardous waste system continues to meet the federal guidelines.
To overcome the strong presumption that jurisdiction is concurrent with state courts,
Congress must explicitly declare that federal jurisdiction is exclusive in the state, or use another
affirmative way to rebut the presumption of concurrence. Tafflin v. Levitt, 493 U.S. 455 (1990),
Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990). RCRA § 7002 provides that private
suits “shall” be brought in the District Court for the district in which the alleged violation
occurred. Davis v. Sun Oil Co., 148 F.3d 606, 612 (1998). Some federal courts interpret the
7
“shall have” language in this statute as insufficient evidence of Congressional intent to grant
exclusive jurisdiction to the federal courts. Id. EPA argues that usage of the word “shall” does
not necessarily indicate mandatory action. However, relevant case law interprets “shall” as a
synonym for “must," although at times, legal writers misuse this language to mean “will” or even
“may.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 n.9 (1995). Even if the language
“shall have” does not expressly vest the District Court with jurisdiction, the Supreme Court’s
decision in Abbott makes clear that judicial review of final agency action belongs in the District
Court. Therefore, even if this Court determines that Congress did not exclusively grant the
District Court jurisdiction with its use of “shall have” in RCRA § 7002, judicial precedence
serves as an affirmative way to overcome the presumption of concurrence with state courts.
Abbott, 387 U.S. at 151-52.
B. This Court has jurisdiction to hear this case pursuant to 28 U.S.C. § 1331.
The District Court also has federal question jurisdiction over CARE's petition because
RCRA § 7004 provides jurisdiction for rulemaking petitions in lieu of 5 U.S.C. § 553(e). The
accepted rules of statutory interpretation require a more specific statute to rule in place of a
general statute. Green v Bock Laundry Machine Co., 490 U.S. 504, 524-525 (1989). RCRA §
7004 provides the specific authority for rulemaking petitions under the Act, and therefore
replaces statute 553(e) of the APA for interpretations of RCRA. Section 7004(a) provides that
“any person may petition the administrator for the promulgation, amendment, or repeal of any
regulation under this chapter.” CARE contends that EPA's inaction on the present petition
constitutes unreasonable agency delay amounting to a denial of the petition, making it
reviewable under 28 U.S.C. § 1331 and RCRA § 7004.
8
District Courts review claims of unreasonable agency delay in extraordinary
circumstances because “it is obvious that the benefits of agency expertise and creation of a
record will never be realized if the agency never takes action.” In re Int’l Chem. Workers Union,
et al., 958 F.2d 1144 (1992). (citing Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 79.
(D.C. Cir. 1984)). On January 5, 2009, CARE filed its petition on the Agency Administrator
(R. 4). After nearly a year of inaction by EPA, CARE filed this action with the District Court
fulfilling all notice provisions (R. at 4). EPA's year-long delay frustrates CARE and New
Union's ability to realize the benefits of EPA expertise and creation of a record. New Union and
EPA argue that RCRA § 7002 does not require EPA to take timely action on these petitions.
However, the fact that courts established factors determining undue agency delay, suggests
otherwise. Id. The doctrine of undue delay seeks to avoid this precise situation. In re Int’l, 958
F.2d 1144.
RCRA § 7006(a)(1) provides this Court with jurisdiction. The Act permits and
encourages interested parties to file for the repeal of any authorized program. RCRA §
7004(b)(1). Furthermore, section 7004(a) requires the Administrator to act within a reasonable
time following receipt of a petition. New Union and EPA will likely argue that RCRA § 7004 is
inapplicable because New Union’s hazardous waste program resembled an order, not a rule
(R. 7). For the reasons enunciated above, CARE renews its assertion that EPA’s approval of
New Union’s hazardous waste program results in a final agency action and is therefore subject to
review under 28 U.S.C. § 1331 and RCRA § 7004. FN2
2See Abbott, 387 U.S. 136 (1967), Tafflin v. Levitt, 493 U.S. 455 (1990), Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990), Davis v. Sun Oil Co., 148 F.3d 606 (1998), Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)
9
II. EPA'S FAILURE TO ACT ON CARE'S PETITION TO INITIATE PROCEEDINGS TO REVIEW NEW UNION'S HAZARDOUS WASTE PROGRAM CONSTITUTED A CONSTRUCTIVE DENIAL AND IS SUBJECT TO JUDICIAL REVIEW UNDER RCRA § 7006(B).
In Telecomm. Research and Action Center v. FCC, the District of Columbia Circuit
established a six-factor test to determine whether a federal agency’s failure to respond to a
petition is unreasonable under the APA. 750 F.2d 70 (D.C.Cir.1984) (“TRAC”) See Families for
Freedom v. Napolitano, 628 F.Supp.2d 535, 540 (S.D.N.Y. 2009). In 1976, the FCC set a
maximum rate of return for AT&T’s interstate and foreign operations under authority provided
by 47 U.S.C. § 205(a). Id. Two years later, Petitioners filed a Petition for Enforcement of
Accounting with FCC, requesting that the Commission determine whether AT&T violated the
maximum rate of return on two separate instances. Id. Although FCC issued a timely Notice of
Inquiry, the Commission did not directly decide whether AT&T’s earnings exceeded the limited
rate of return. Id. FCC took no further action over the next five years. Id.
Petitioners sought judicial intervention and on interlocutory appeal, the United States
Court of Appeals outlined six factors to determine whether FCC’s omission amounted to
unreasonable agency delay. Id. at 74. The court stated that although no single test for
unreasonable agency delay existed, relevant case law provides for a “hexagonal” standard. Id. at
80. “The D.C. Circuit’s decision in TRAC has been widely followed by federal courts.” Id. at
541 (citing Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir.2001), Wellesley v. F.E.R.C., 829
F.2d 275, 277 (1st Cir.1987)). The six TRAC factors are:
"(i) [T]he time agencies take to make decisions must be governed by a rule of reason; (ii) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (iii) delays that might
10
be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (iv) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (v) the court should also take into account the nature and extent of the interests prejudiced by delay; and (vi) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is reasonably delayed.” 750 F.2d at 80.
A. First TRAC factor: the agency’s pace of decision must follow a rule of reason
The first issue is whether EPA’s failure to act on CARE’s petition exceeds a reasonable
time limit for agency action and constitutes a constructive denial of that petition. The first
TRAC factor provides that an agency’s failure to take action on a citizen petition within a
reasonable time will constitute a constructive denial of that petition. Telecomm. Research and
Action Center v. FCC, 750 f.2d 70, 80 held (“the time agencies take to make decisions must be
governed by a rule of reason”). CARE asserts that EPA’s failure to initiate proceedings
exceeded a reasonable time. Such inaction resulted in a constructive decision that State’s
program continues to meet RCRA guidelines; therefore, effectuated a denial of CARE’s petition.
In Potomac Elec. Power Co. v. Interstate Commerce Comm., the court stated that there
must be a “rule of reason to govern the time limit to administrative proceedings.” 702 f.2d 1026,
1034 (1983). The basis of the court’s decision stemmed from the APA, which states, “[W]ithin a
reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. §
555(b). When petitioned, an agency must take action or assume the constructive issuance of a
denial. Id. Excessive agency delay “saps the public confidence in an agency’s ability to
discharge its responsibilities and creates uncertainty for the parties, who must incorporate the
potential effect of possible agency decisionmaking into future plans.” Id.
“While there is no per se rule as to how long is too long to wait for agency action, a
reasonable time for agency action is typically counted in weeks or months, not years.” In re Am.
11
Rivers & Idaho Rivers United, 372 f.3d 413, 419 (2004), See also In re Commc’n, Inc., 531 f.3d
849, 859 (Court found six year agency delay unreasonable). In Am. Rivers, environmental
organizations petitioned an energy regulatory agency to seek formal consultation of a marine
fisheries service. Id. at 413. Following six years of inaction, the environmental organizations
petitioned the court of appeals to compel agency action. Id. The court held that once a federal
agency receives a rulemaking petition, it must render a decision “within a reasonable time.” Id. at
418. The court found the six-year delay unreasonable and ordered the agency to issue a response
on the petition within 45 days of the court’s opinion. Id. at 419-20.
A court may hesitate to intervene when a petition involves highly technical matters or
requires interference with the agency’s internal processes. In re Commc’n, Inc., 531 f.3d 849,
859 (D.C. Cir. 2008) (Court held that a petition requesting a legal basis for an agency policy was
"neither technical or intrusive"). Under these conditions, the “rule of reason” may afford
agencies an extended period of time to act on petitions before a court announces a constructive
decision. Id.
CARE submitted its petition to the EPA on January 5, 2009 (R. at 5). Prior to the District
Court’s dismissal of CARE’s action on June 2, 2010, EPA failed to initiate proceedings to
determine whether New Union’s hazardous waste program continues to meet RCRA’s standards.
42 U.S.C. § 3006(e). The substance of CARE’s petition involves the treatment, storage and
disposal methods of New Union’s hazardous waste program and did not bring to light any
complex findings, nor did it introduce contemporary issues that require an extended period of
review before EPA became capable of commencing agency action. The petition involved
material EPA is legally required to independently inspect under RCRA § 3006(b).
12
EPA’s inaction on the CARE petition amounts to egregious agency delay, beyond the
“rule of reason.” Potomac, 702 F.2d at 1034. CARE made numerous direct attempts to alert
EPA that New Union’s hazardous waste program no longer met RCRA standards, “many of
them years ago.” (R. at 8). Although EPA did not acknowledge CARE’s reports, or commence
proceedings under RCRA § 3006(e), the Agency knew of CARE’s concerns (R. at 11). The
reasonable time with which EPA needed to take action on CARE’s petition should be
compressed due to the extent to which EPA had notice of the problems in New Union. Due to
prior notice of CARE’s concerns and twelve months of agency inaction, this Court should find
that EPA’s failure to commence proceedings constitutes a constructive denial of the petition.
B. Second TRAC factor: the agency’s enabling statute may provide a timetable to give substance to this rule of reason
The second TRAC factor states, “Where Congress has provided a timetable or other
indication of the speed with which it expects the agency to proceed in the enabling statute, that
statutory scheme may supply content for this rule of reason.” 750 F.2d 70, 80. The Court of
Appeals for the Ninth Circuit provides guidance into statutory interpretation where an express
timetable is omitted. Indep. Mining Co. v. Babbit, 105 F.3d 502, 507 (Nev. 1997). In Babbit,
the court stated that where no express deadline is included in the governing statue, a reasonable
or expeditious time under the circumstances is appropriate. Id. at 508. Although RCRA does
not specify the timetable for EPA to act on citizen petitions, Congressional action provides such
an inference.
In 1984, the 98th Congress enacted the Hazardous and Solid Waste Amendments, which
altered several portions of RCRA. See H.R. 2867, 98th Cong., 1st Sess. The Amendments
served to protect the environment and public health from new and emerging methods of
13
hazardous waste transportation, storage, and disposal. Id. In proposal of the Amendments, the
House Report included, “time is of the essence,” and, “The Committee believes that there is an
immediate need to provide notice to transporters, disposers, and other handlers… Such notice
will enable handlers to institute proper precautions to assure that waste is safely managed.” 1984
U.S.C.C.A.N 5576, 5612 (emphasis added). It can be inferred from this language that Congress
intended prompt agency action with RCRA claims.
One such amendment to RCRA included Section 3007 of the Solid Waste Disposal Act
subsection (d), which states:
“The Administrator shall annually undertake a thorough inspection of every facility for the treatment, storage, or disposal of hazardous waste which is operated by a State or local government for which a permit is required under section 3005 ‘42 U.S.C. 6925’ of this title.” 42 U.S.C 6927. (Emphasis added).
Congress thereby set a required timetable for inspections of hazardous waste treatment facilities
not to exceed twelve months. Congress further amended RCRA provisions concerning citizen
suits brought under Title IV:
“(2) (A) No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to (i) the Administrator; (ii) the State in which the alleged endangerment may occur; or (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste…” Id.
This language implies that Congress intended EPA to act on citizen petitions within twelve
months, at a point between its mandatory annual state-operated facility inspections. A twelve-
month maximum also complies with the district court’s holding in Families for Freedom, which
states “a reasonable time for agency action is typically counted in weeks or months, not years.”
628 F.Supp.2d 535, 540 (2009) (citing In re Core Communs. Inc., 531 F.3d 855).
14
The period of time between the filing of CARE’s petition and when it sought judicial
intervention surpassed the reasonable timetable Congress outlined in its Hazardous and Solid
Waste Amendments to RCRA. H.R. 2867, 98th Cong., 1st Sess. The language of RCRA sets
forth time limits in terms of months. Additionally, EPA conducts annual reviews of state
programs in lieu of federal programs. Therefore, citizen petitions should receive
acknowledgment within such time as well. EPA failed to initiate proceedings to consider
withdrawing approval of New Union’s program within fifteen months. Meaning the Agency
conducted at least one, possibly two, formal reviews of New Union’s program before CARE
initiated proceedings in the District Court. Therefore, EPA inspected New Union’s program
after it received CARE’s petition and failed to take action, constituting a constructive denial.
C. Third and Fifth TRAC factors: delays are less tolerable when involved; the nature and extent of the interests prejudiced by delay should be considered.
Due to the similarity of these two factors, courts often consider them together.
Muwekma Tribe v. Babbit, 133 F. Supp.2d 30 (D.C. Cir. 2000). In Muwekma Tribe, the Bureau
of Indian Affairs (BIA) failed to address the Tribe’s petition for federal recognition for several
years. The federal recognition sought by the Tribe provides “access to federal programs
implemented in an effort to improve the health and welfare of federally recognized tribes,
including educational programs, health services and facilities, and safe water supply and water
disposal systems.” Id. at 38. In Muwekma, the court found a nexus between human welfare and
economic factors that support “compelling agency action based on reasonable delay.” Id. “This
is particularly true when the very purpose of the governing Act is to protect those lives” being
threatened by the failure of an agency to act for the benefit of human welfare. Public Citizen
Health Research Group v. Auchter, 702 F.2d 1150 (1983).
15
Likewise, in Oil Chemical and Atomic Workers Int’l Union v. Zeeger, the Mine Safety
and Health Administration delayed responding to the “OCAW” petition for rulemaking
regarding the exposure of underground minors to dangerous radon daughters for approximately
five years. 768 F.2d 1480 (1985). After the five-year delay, the agency began the rulemaking
procedures at the same time the case was underway. Id. Although the court mentioned that
MSHA may be in the best position to determine the complex scientific and technical issues, the
court, recognizing that human life and health were at stake, held that any further delay would be
unreasonable. Id.
Unlike the circumstances in Oil Chemical and Atomic, where the agency needed to
conduct research on the effects of exposure, EPA must only apply its standards in reviewing
New Union’s program utilizing the previous research. In 2000, EPA researched the harmful
effects of Pollutant X and subsequently created the standards that CARE wishes to hold New
Union to in their system of treatment for Pollutant X. (R. at 12). Any scientific issues involving
Pollutant X were resolved by the 2000 Amendment and thus present no reason for delay.
Correspondingly, in Public Citizen Health Research Group v. Auchter, the court found a three-
year delay to announce the need and intent for new rulemaking was “simply too long given the
significant risk of grave danger EtO poses to the lives of current workers and the lives and well-
being of their offspring.” 3 Id.
CARE petitions New Union’s hazardous waste program due to a change in economic
circumstances that now put the State’s citizens in peril. Additionally, New Union's decrease in
resources allotted to an ever-growing hazardous waste program. As a result, New Union’s
3EtO is defined as Ethylene Oxide, a synthetic chemical now know to pose serious qualitative health risks.
16
hazardous waste program performs at a lesser rate than mandated and no longer sufficiently
protects its citizens.
These three cases and the present case are in stark contrast with Indep. Mining where an
applicant for mineral patents brought an action against the Secretary of Interior, Department of
Interior (DOI) and Bureau of Land Management (BLM), alleging an unreasonable and
intentional delay in processing the application. 105 F.3d 502 (1997).
D. Fourth TRAC factor: The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority.
Courts have found that an administrative agency’s unreasonable delay serves as evidence
of the “breakdown of regulatory processes.” In re American Rivers and Idaho Rivers United, 372
F.3d 413, 418 (D.C. Cir. 2004) (citing Cutler v. Hayes, 818 F.2d 879, 897 at n. 156 (D.C. Cir.
1987)). Once a breakdown in an agency’s regulatory process is determined, the court must
evaluate the effect a court order compelling the agency to act will have towards the ultimate goal
of the regulation or a competing priority. TRAC, 750 F.2d 70 (D.C.Cir.1984). When considering
unreasonable delay, the court must remand the case for proper weight to be given to the effects
of expediting agency action. Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094,
1101 (D.C. Cir. 2003).
The court “should give due consideration in the balance to ‘any plea of administrative
error, administrative convenience, practical difficulty in carrying out a legislative mandate, or
need to prioritize in the face of limited resources.’” In re Int’l Chemical Workers Union, 958
F.2d 1144, 1148 (D.C. Cir. 1992) (citing Cutler, 818 F.2d at 898). In Int’l Chemical Workers
Union, the Occupational Safety and Health Administration (OSHA) fell almost a year behind the
17
original rulemaking schedule, set forth by the Administration, for addressing a petition filed for
an Emergency Temporary Standard (“ETS”) concerning occupational exposure to cadmium.4 Id.
at 1146. The court determined that the “delays exact too high a toll on exposed workers’ health
given the undisputed heath risks of cadmium” and the delay under the circumstances was too
“egregious as to demand the court’s intervention to enforce as a deadline.” Id. at 1148.
In certain circumstances, courts refuse to grant a petition where a petitioner fails to show
that the agency singled them out by delaying approval. In re Barr Lab., Inc., 930 F.2d 72, 75
(D.C. Cir. 1991) (Barr Laboratories sought approval of a generic drug; petition denied due to
failure to show prejudicial treatment). Additionally, where there is no evidence of higher priority
for a certain petition, court failed to see the benefit of moving one petition to the front, pushing
other petitions further down the line. Muwekma Tribe v. Babbit, 133 F.Supp.2d 30, 41 (D.C.
Cir. 2000) (Muwekma Tribe failed to make a showing that their tribe’s BIA approval was more
pressing than competing applications).
In the present case, CARE asks this Court to find EPA’s failure to act by withdrawing
approval of New Union’s hazardous waste program under RCRA § 3006(e) as a constructive
denial of CARE’s petition. Improper regulations will inevitably affect the health of the
environment, as well as the citizens of New Union, making this a compelling interest. EPA’s
treatment of hazardous waste regulatory program is a high priority, going towards the heart of
the Agency’s purpose. New Union’s program fails to comply with the regulations originally set
forth by EPA, making CARE’s petition one of significant importance. While EPA governs a
large array of important issues, its regulation of hazardous waste, including Pollutant X - one of
4Cadmium is a soft, blue-white metal or gray powder that has many industrial uses, but has been determined to be an extremely dangerous substance.
18
the most dangerous materials - is a priority to be immediately addressed. Based on the dire and
impending harm New Union's environment faces, EPA cannot justify its yearlong delay as
reasonable.
E. Sixth TRAC factor: The court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is reasonably delayed.
The sixth TRAC factor serves to remind the trier of fact that a finding of impropriety, or
bad faith, is not necessary to find that agency action is unreasonably delayed. Courts "need not
find any impropriety lurking behind agency lassitude in order to hold that agency action is
'unreasonably delayed'". Public Citizen Health Research Group v. Comm’r of Food and Drug,
740 F.2d 21, 34 (1984). See Muwekma Tribe v. Babbitt, 133 F.Supp. at 41 ("while the record
does not disclose a hint of impropriety, the court's review of the remaining factors supports a
determination that DOI acted and continued to act with unreasonable delay"). Therefore, if the
other five TRAC factors point to a finding of unreasonable delay, the absence of bad faith will
not preclude a court from determining unreasonable agency delay.
A finding of bad faith, however, will likely lead to an unfavorable result for the agency.
Indeed, "where an agency has manifested bad faith as by singling someone out for bad treatment
or asserting utter indifference to a congressional deadline, the agency will have a hard time
claiming legitimacy for its priorities." In re Barr Labs, Inc., 930 F.2d 72 (D.C. Cir. 1991) (citing
In re Monroe Commc’n Corp., 840 F.2d 942 (D.C. Cir. 1988)). The District of Columbia Circuit
expressed the opinion that when a court determines an agency delayed action in bad faith, it will
find the delay unreasonable. Id.
In case ab initio, CARE urges this Court to recognize the indifference with which EPA
treated CARE's petition for rulemaking with regard to New Union's hazardous waste program.
19
The record supports an assertion that EPA knew of the Program’s decline in productivity, as well
as the decline in resources devoted to it. (R. at 11) EPA even stepped in to assist New Union in
processing permit applications. Id. EPA's notice of the environmental situation in New Union
and CARE's petition collectively supports a conclusion that EPA treated CARE’s petition with
indifference for nearly a year.
III. THIS COURT SHOULD LIFT THE STAY IN C.A. NO. 18-2010 AND PROCEED WITH JUDICIAL REVIEW OF EPA'S CONSTRUCTIVE DENIAL OF CARE'S PETITION UNDER RCRA 7006(B).
If this Court is to find that EPA constructively denied CARE's petition when it failed to
act for almost a year, it should lift the stay in C.A. No. 18-2010 and proceed with judicial review
of EPA's constructive denial of CARE's petition. EPA and New Union argue that the proper
course of action is to remand this case to the lower court to order EPA to initiate proceedings to
consider CARE's petition. Record 3. For the reasons discussed previously regarding EPA's
constructive denial of CARE's petition and those that follow, CARE urges this court to lift the
stay in C.A. No. 18-2010.
In Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., the U.S. Supreme Court
annunciated the controlling test for judicial review of an agency's interpretation of a statute. 467
U.S. 837 (1984). Recognizing that many agency interpretations are centered on the agency's
specialized expertise and skill in a subject area, the court held that agency interpretation of a
statute that it administers should receive deference. Id. at 866. Chevron introduced a two-part
test to determine whether agency deference is appropriate. Id. at 842. First, the court should
consider whether Congress directly speaks on the precise matter at issue. Id. at 843. If Congress,
through statutory language, makes its intent clear, the inquiry shall end because "the court, as
well as the agency must adhere to the unambiguously expressed intent of Congress." Id. If
20
Congress has not spoken directly on the issue, the second inquiry is whether the agency's
interpretation is based on a permissible construction of the statute." Id.
In the case before this court, RCRA 7006 expressly provides the following:
"Review of the Administrator's action... (2) in granting, denying, or withdrawing authorization or interim authorization under section 6926 of this title, may be had by any interested person in the Circuit Court of Appeals..." UNITED STATES CODE ANN., CHAPTER 42 § 6976.
Congress' decision to expressly authorize the Circuit Court of Appeals power of review over the
administrator's action regarding authorization of state waste programs is indicative of Congress'
clear intent for review of RCRA actions in the Court of Appeals. Id. Such a clear expression of
congressional intent satisfies the first step of the Chevron test and any agency interpretation of
this part of the stature would be unnecessary.
Congress also set a timeline for agency action when it expressly provided that "any such
application must be made within ninety days of the issuance, denial, modification, revocation,
grant or withdrawal." UNITED STATES CODE ANN., CHAPTER 42 § 6976. This provision is
indicative of Congress' intent that appeals of EPA actions under the RCRA be handled in an
expedient manner. See Clement Kiln Recycling Coalition v. EPA, 493 F.3d 207, 215 (2007)
("Congress has declared a preference for immediate review by providing that a challenge to a
final RCRA regulation must be brought within ninety days of promulgation"). To remand this
case to the District Court after one year of EPA inaction would only serve to frustrate
congressional intent. See Clement Kiln Recycling Coalition v. EPA, 493 F.3d 207, 215
(suggesting a time guideline of 90 days). Relevant precedent further suggests that this court
proceed with judicial review of EPA's constructive denial of CARE's petition under 7006(b). In
Greenpeace, Inc. v. EPA, the court said in dicta that "Congress gave the courts of appeals
21
exclusive jurisdiction to review permit decisions.” 43 F.3d 701, 1180 (1995), see also
Greenpeace, Inc. v. Waste Tech. Indus., 9 F.3d 1174, 1180 (1994), State of Washington, Dept. of
Ecology v. EPA, 752 F.2d 1465, 1468 (1985).
The court in Abbott Lab. v. Gardner, suggests the use of a two-step test to determine
whether an agency action is fit for review. 387 U.S. 136, 149 (1967). The Abbott court evaluated
"both the fitness of the issue for judicial decision and the hardship to the parties of withholding
court consideration." Id. Here, as in Abbott, the interactions between CARE and EPA do not
suggest that any further EPA action is anticipated. See Abbott, 387 U.S. 136, 149 ("B
oth sides moved for summary judgment in the District Court, and no claim is made here that
further administrative proceedings are contemplated"). After remaining silent on CARE's
petition for nearly a year and being on notice of deficiencies in New Union’s hazardous waste
system, EPA has not given any reason for CARE or the citizens of New Union to believe that
any further administrative action is forthcoming. (R. at 10)
As to the second prong of the Abbott test, considering the hardship to the parties of
withholding court consideration, the balance of the test falls in favor of CARE. 387 U.S. 136,
150. The possible hardship to the citizens of New Union and their environment by further delay
in review is likely to be great. The hazardous waste facilities in New Union are under severe
financial hardship and lack the resources to review expired permits in addition to their large load
of new permit applications. The 2009 Amendment to RRA, transferring regulation of the RCRA
waste program to the New Union Railroad Commission, gives rise to further need for judicial
review. There is potential for corruption because the president of New Union's only railroad is
the brother of the Majority Leader of the State Senate, Luther Greenleaf. Only one railroad
22
operates in New Union and it alone must transport the dangerous Pollutant X. Due to the 2009
Amendment to RRA, the railroad is not subject to RCRA regulation. This combination of
inefficiency and nonintervention creates a perfect storm that will lead to dire consequences.
RCRA § 7006 expressly provides for judicial review of EPA's action to deny its
withdrawal of a petition in the Court of Appeals. Further, no agency interpretation is necessary
under Chevron. 467 U.S. at 842. EPA’s inaction quashed any belief that EPA will pursue
further action on CARE's petition on its own. A decision to remand this case to the district court
will result in undue and unfair delays that the people of New Union cannot afford to face. The
potential danger to the environment is too great for delay and requires immediate action. This
court should proceed with judicial review of EPA's constructive denial of CARE's petition.
IV. EPA MUST WITHDRAW ITS APPROVAL OF NEW UNION’S PROGRAM BECAUSE ITS RESOURCES AND PERFORMANCE FAIL TO MEET RCRA’S APPROVAL CRITERIA
EPA must withdraw its approval of DEP because New Union lacks adequate resources to
enforce RCRA’s standards. When EPA authorized New Union’s hazardous waste program in
1986, “the agency noted that with less resources the program might not be adequate.” (R. at 10).
From the date of this assessment, State resources devoted to the program “shrunk,” while the
number of hazardous waste TSDs increased. (R. at 10-11). Indeed, New Union cut over 50% of
the program’s permit writers and inspectors, and reduced the number of attorneys, technicians,
and administrators since the program’s inception. (R. at 10). DEP encountered an additional
setback when New Union’s Governor ordered a hiring freeze on state employees, including
positions within the Program. (R. at 10-11).
The record supports CARE’s position that EPA must commence proceedings under
RCRA § 3006(e) and withdraw its approval of New Union’s hazardous waste program: “DEP’s
23
shortage of resources has translated directly into less than robust implementation and
enforcement of RCRA.” (R. at 11). This Court must compel EPA to withdraw New Union’s
program for three reasons: (i) CARE properly initiated a citizen petition after EPA refused to
take action; (ii) New Union’s inability to enforce DEP standards violated RCRA on the basis of
its federal minimum criteria; (iii) Allowing DEP to continue violates RCRA’s objectives.
A. CARE initiated a citizen suit to compel EPA’s withdrawal of DEP approval.
CARE filed a petition to compel EPA’s withdrawal of New Union’s authorized program
pursuant to 42 U.S.C. § 6974 and 5 U.S.C. § 553(e). (R. at 1). RCRA permits any person to
commence such an action against the EPA Administrator when the Administrator fails to
perform any non-discretionary duty conferred under the Act. RCRA § 7002(a)(2). Citizen suits
occupy a valuable and specific role within the enforcement of state-authorized programs under
RCRA compliance standards. See Glazer v. American Ecology Environmental Services Corp.,
894 F.Supp. 1029 (U.S.D.C. Eastern District of Texas 1995).
In Glazer, an environmental group filed a citizen suit for defendant’s alleged violations
under RCRA, the Texas State Implementation Plan, and several federal and state hazardous
waste requirements. 894 F.Supp. 1029, 1029-31 (U.S.D.C. Eastern District of Texas 1995).
Plaintiffs successfully relied on RCRA’s citizen suit provision to assert jurisdiction. 42 U.S.C. §
6972(a); Glazer, 894 F.Supp. at 1034. (Held: plaintiffs were entitled to allege RCRA violations
under § 6972(a)). “Congress intended that citizen groups are not to be treated as nuisances or
troublemakers but rather as welcomed participants in the vindication of environmental interests.”
Id. at 1034 (citing Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d. Cir. 1976).
24
The court in Glazer, further defined RCRA’s citizen suit provision as "appropriate when
the state and federal authorities have declined to utilize their enforcement authority.” 894
F.Supp. at 1034 (citing Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 380 (8th
Cir. 1994)). Citizens may file suit under RCRA when the violation of a hazardous waste permit
involves an “imminent and substantial endangerment to health or the environment.” Id. at 1039
(citing 42 U.S.C. § 6972(a)(1)(B)). A court will bar a citizen suit only when the state has
commenced prosecution to require compliance with a permit. Id. (citing 42 U.S.C.
6972(a)(1)(A)).
EPA and New Union each failed to remedy DEP’s enforcement standards prior to
CARE’s petition. (R. at 4). Twenty-two significant permit violations and hundreds of minor
violations in 2009 provide evidence of New Union’s failure to enforce hazardous waste
standards. (R. at 11) New Union and EPA's failure to commence prosecution for permit
compliance prior to or during this citizen suit places New Union’s citizens in great danger.
Further inaction will perpetuate the harmful impact on the State’s residents and its environment.
Therefore, CARE's citizen suit complies with Congressional and judicial standards set by Glazer.
894 F.Supp. 1029.
B. New Union’s inability to enforce DEP standards violated RCRA on the basis of the federal minimum criteria.
RCRA requires EPA to withdraw its approval of an authorized state program, following a
public hearing, whenever a state fails to enforce an authorized program pursuant to the Federal
program. RCRA § 3006(e). The Act assigns the EPA Administrator a duty to monitor each
state-authorized program and initiate proceedings to reinstate the Federal program when a state
fails to suffiiently enforce RCRA standards. Id. Injunctive relief is necessary where a state’s
25
authorized program lacks the financial resources to comply with environmental regulations, and
where public health issues are implicated. U.S. v. Alisal Water Corp., 326 F.Supp.2d 1010, 1013
(N.D. Cal., 2002).
In Alisal Water, the court found that defendants, owners of drinking water companies,
violated the federal Safe Drinking Water Act ("SDWA") for failure to monitor and test the
microbiological contaminant levels in their water. Id. at 1011. Due to public health concerns
and the financial limitations of the defendants, the court appointed a receiver to ensure
defendants abated their commercial practices to comply with SDWA. Id. at 1012. In Alisal
Water, the court determined that defendants lacked the financial wherewithal to operate in a
manner that ensured both compliance with the federal program and the protection of public
health: “This court concludes that to maintain the status quo, that is, to allow defendants to
continue to operate… without judicial oversight, would be a total abdication of its judicial
responsibility.” 326 F.Supp.2d at 1026.
Alisal Water, states that when a controlling party lacks the financial resources to comply
with a federal program, and public health issues arise, the court must reassign control to a party
capable of ensuring compliance, a "receiver". 326 F.Supp.2d at 1013. RCRA citizen suit
process mirrors the receiver-appointment process in several key aspects. As stated in Glazer,
citizen suits are appropriate when federal or state authorities decline to act. 894 F.Supp. at 1034.
In such case, RCRA § 7002(a)(2) directs citizens to file suit in the district court where the
alleged violation occurred the court may order the Administrator to take action under
§7002(a)(2), a function similar to the appointment of a receiver.
26
C. EPA’s refusal to withdraw DEP’s authorization violates RCRA objectives.
RCRA § 1003(a) states that the objectives of the Act are to "promote the protection of
health and environment and to conserve valuable material and energy resources.” The Act aims
to achieve these objectives by “assuring that hazardous waste management and practices are
conducted in a manner which protects human health and the environment,” and by “requiring
that hazardous waste be properly managed... thereby reducing the need for corrective action at a
future date.” RCRA § 1003(a)(4), (5). According to the record, New Union’s fiscal restraints
prevent DEP from protecting human health and the environment, or properly managing
hazardous waste treatment. This Court must compel EPA to withdraw its authorization of New
Union’s program because of the risks associated with insufficient hazardous waste regulation and
enforcement.
EPA will likely argue that immediate withdrawal of DEP will harm the State, and place a
great burden on the Agency. The Agency asserted a similar argument in Save the Valley, Inc. v.
EPA, 223 F.Supp.2d 997, 1014 (S.D.Ind. 2002). In Save the Valley, a citizen group alleged that
Indiana’s water treatment program issued permits that failed to comply with the Clean Water
Act. Id. at 999. Citizen group also contested that the program failed to inspect and enforce
permit-issued sites, and that EPA possessed knowledge of such failures. Id. The court held that
a lack of compliance with the federal program “might have warranted” EPA intervention, but
because the state program formulated new permit requirements and inspected each site shortly
after citizen’s filed suit, court-ordered withdrawal of the state program was not appropriate. Id.
at 1014.
27
This case differs significantly from Save the Valley. Here, the state cannot simply
formulate new rules and reach compliance with the federal program in a short matter of time.
Due to inadequate funding, DEP will continue to insufficiently monitor and enforce hazardous
waste activity in New Union. Unlike Save the Valley, if this Court does not compel EPA to
withdraw approval of DEP, the cost of its replacement will be much more significant. CARE
acknowledges that EPA will incur a financial burden if its withdraws DEP’s authorization, but a
delay in doing so will require greater Agency investment in the future.
V. APPROVAL OF NEW UNION’S PROGRAM MUST BE WITHDRAWN BY THE EPA BECAUSE NEW UNION’S 2000 ENVIRONMENTAL REGULATORY ADJUSTMENT ACT (“ERAA”) WITHDRAWS RAILROAD HAZARDOUS WASTE FACILITIES FROM ANY REGULATION.
EPA must withdraw its approval of New Union’s program because the New Union 2000
Environmental Regulatory Adjustment Act (“ERAA”) effectively withdraws railroad hazardous
waste facilities from any form of regulation and transferred “all standard setting, permitting,
inspection, and enforcement authorities of the DEP under any and all state environmental statutes
to the Commission.” (R. at 12). This amendment caused the regulation of railroad hazardous
waste facilities to be an entirely state-run program, not controlled by standards instituted by
EPA. Id. The ERAA also removed criminal sanctions for violations of environmental statutes
falling under the jurisdiction of the New Union Railroad Commission. Id. CARE asserts that
these amendments make New Unions waste management program non-compliant with federal
standards. Thus, EPA must withdraw its approval of New Union’s program.
Under RCRA, citizen suits are permitted when a State program fails to meet the
minimum criteria of the approved programs. Ashoff v. City of Ukiah, 130 F.3d 409, 412 (1997).
RCRA § 7002 allows citizens to file suit against any defendant who contributes to the handling,
28
storage, treatment, transportations, or disposal of solid or hazardous waste. R.C.R.A § 7002.
According to this section, New Union’s railroad falls within EPA regulations and is an
appropriate issue for the citizen suit presently before the court. Id.
EPA may not approve a state program if “(1) such state program is not consistent with the
federal program; (2) such program is not consistent with Federal or State programs applicable in
other States, or (3) such program does not provide adequate enforcement of compliance with the
requirements…” Hazardous Waste Treatment Council v. Reilly, 938 F.2d 1390, 1392 (1991). In
this case, the New Union Railroad hazardous waste amendment eliminates criminal sanctions for
violations of environmental statutes. (R. at 12) Thus, the program fails to provide adequate
enforcement of the regulations to ensure compliance. When a program is deficient through one
of these categories, “EPA must notify the State of the deficiency; and if it is not corrected within
ninety days, the EPA shall withdraw authorization of such program.” Id. EPA has been on
notice of New Union’s deficient program for over a year. Moreover, New Union’s financial
situation will not permit it to rectify the deficiencies within the ninety-day time frame. The
demands on New Union DEP increased while the number of employees decreased due to a hiring
freeze on state employees, which is anticipated to continue for at least two years. (R. at 10-11).
EPA and New Union will likely suggest that New Union’s present failure to regulate
railroad hazardous waste facilities will not require EPA to withdraw its approval of the entire
Program. Courts have recognized the potential harmful effects that could result from the
immediate withdrawal of EPA approval of a state’s hazardous waste program. Save the Valley,
Inc. v. EPA, 223 F.Supp.2d 997 (2002). Additionally, there have been concerns that the
withdrawal of these programs may result in a significant administrative burden on EPA. Id.
However, EPA is already involved with permit approval in New Union and is therefore equipped
29
to effectively handle New Union’s hazardous waste program while the state reevaluates its
current program. (R. at 11). Thus, the administrative burden an immediate withdrawal will
place on EPA will not outweigh the importance of preventing “imminent and substantial
endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B).
This nature of this case involves the threat of imminent and substantial risk to human
health or to the environment. Courts have determined that RCRA § 6972(a)(1)(B) gives this
Court authority to grant equitable relief to the “extent necessary to eliminate any risk posed by
toxic wastes.” Burlington Northern and Santa Fe Railway Co. v. Grant, 505 F.3d 1013, 1020-
1021 (2007) (citing Dague, 935 F.2d at 1355 (quoting United States v. Price, 688 F.2d 204, 213-
214(3d Cir. 1982))(emphasis in original). DEP’s inadequate treatment of hazardous waste
presents a substantial risk to the environment. This risk is not containted within New Union, but
extends to any other state that receives waste from New Union, as New Union does not have
appropriate treatment or disposal facilities for Pollutant X. (R. at 12). Additionally, the
deregulation of railroad hazardous waste affects any state that the railroad may traverse through.
This type of risk is substantial and extends beyond the limits of New Union, thus making it
imperative for EPA to immediately resolve.
Proof of “endangerment,” under RCRA, "is not necessary…[to] show proof of actual
harm to health or the environment.” Id. (citing Dague, 935 F.2d at 1355-1356; United States v.
Price, 688 F.2d at 211). Therefore, it is unnecessary that CARE provide evidence of current
harm to the environment or human health for this issue to be ripe. A foreseeable risk that the
lack of railroad hazardous waste regulations could result in potential harm is sufficient. The
same is true for the court’s interpretation of “imminent;” the harm is not required to occur
30
immediately, so long as there is a present risk of threatened harm. Id. (citing Meghrig, 516 U.S.
at 485, 485-486).
Case law has determined that endangerment is “substantial” pursuant to RCRA when
there is a reasonable cause for concern that someone, or the environment, “may be exposed to
risk of harm by release, or threatened release, of hazardous substances in the event remedial
action is not taken.” Id. at 1021. (citing Calif. Dept. of Toxic Substances Control v. Interstate
Non-Ferrous Corp., 298 F.Supp2d 930, 980 (E.D.Cal.2003). As discussed above, the prospect of
the release of hazardous waste, particularly Pollutant X, during transportation on the newly
deregulated New Union railroad, when there are no longer criminal sanctions for violations is
quite foreseeable. The purpose behind criminal sanctions for violations of environmental statutes
is to encourage individuals to adhere to the statutory guidelines, even when it is economically
costly to do so. Without sanctions, it is foreseeable that New Union, which is currently under-
staffed and lacking appropriate funds, may not regulate the hazardous wastes efficiently, thus
resulting in some release. With the level of danger that Pollutant X threatens, and the fact that it
must be transported out of New Union for treatment and disposal, EPA must withdraw approval
to ensure release of this hazardous waste does not occur.5
In order to ensure that New Union adequately improves their current hazardous waste
program to meet the federal standards determined by EPA, withdrawal of the entire program is
necessary. New Union’s permit program is currently deficient and already requires EPA’s
assistance to function. The recent deregulation of railroad waste and removal of criminal
sanctions for environmental violations creates a dangerous situation in New Union, with the
potential to cause a costly toxic spill. It is clear that New Union is financially unable to remedy
5Pollutant X is recognized by EPA and World Health Organization to be among the most potent and toxic chemicals to the public health and the environment. (R. at 12).
31
their deficiencies within the ninety-day limit, and thus EPA must withdraw its approval of New
Union's program and should step in to regulate New Union’s entire program to prevent a
potentially serious environmental disaster.
VI. EPA MUST WITHDRAW ITS APPROVAL OF NEW UNION'S PROGRAM BECAUSE 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.
New Union’s treatment of Pollutant X under the 2000 RAA renders the state program
inadequate under the federal program and inconsistent with federal standards, and other
approved state programs, as well as in violation of the commerce clause. As provided by RCRA
§ 3006, EPA must authorize state programs that are consistent with and equivalent to the federal
program. The statute does not define either “consistent” or “equivalent,” but 40 CFR 271.14
provides regulatory guidance.6 R.C.R.A § 3006.
ERAA’s removal of criminal sanctions for violations of environmental statutes renders
the State program less stringent than RCRA. (R. at 12). Chapter 40 of the Code of Federal
Regulations at section 271.16 provides RCRA with enforcement authority.7 Actions taken by the
state under an authorized hazardous waste program should have the “same force and effect” as
action taken by the Administrator under RCRA §3006(d). 40 C.F.R. § 271.16. As the “effect” of
violating federal regulations is a subject to criminal prosecution, it seems pursuant to RCRA
6“must… establish requirements at least as stringent as the corresponding listed provision.” R.C.R.A § 3006 7 40 CFR 271.16 in relevant part states (a) “Any state agency administering a program shall have available the following remedies for violations of State program requirements: (3) “To access or sue to recover in court civil penalties and to seek criminal remedies, including fines as follows: (ii) Criminal remedies shall be obtained against any person who knowingly…(b)(1) The maximum criminal fines shall be assessable for each instance of violation…
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§3006(d) that the same is required under a state program. ERAA’s removal of criminal sanctions
thus renders New Union’s program not equivalent under RCRA.
Other states have recognized that criminal sanctions are procedurally necessary to RCRA
program enforcement. Parola v. Weinberger, 848 F.2d 956 (Cal.1988). The historical meaning
of “requirement” cannot “be limited to substantive environmental standards…but also must
include the procedural means by which those standards are implemented.” Id. at 961. Criminal
sanctions are a common and effective means of enforcing agency compliance with regulations.
Id. See also. California v. Walters, 751 F.2d 977 (9th Cir. 1984); United States v. MacDonald &
Wilson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991); U.S. v.. Elias, 269 F.3d 1003 (9th Cit. 2001).
Federal law prevails in situations falling under the commerce clause, because federal law
is the supreme law of the land. Gibbons v. Ogden, 19 U.S. 448 (1821). To determine whether a
case falls within the reach of the commerce clause, the state regulations must involve (1) the
channels of interstate commerce, (2) the instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come from intrastate activities, or (3)
those activities that substantially affect interstate commerce. U.S. v. Lopez, 514 U.S. 549
(1995); U.S. v. Morrison, 529 U.S. 598 (2000).
It is clear that “solid waste, even if it has no value, is an article of commerce.” Freier v.
Westinghouse Electric Corp., 303 F.3d 176, 202 (2002) (citing Chemical Waste Management,
Inc. v. Hunt, 504 U.S. 334 (1992)). Such wastes are commonly transported in interstate
commerce, much as Pollutant X must be transported in interstate commerce to an out-of-state
disposal facility. See generally Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992),
(R. at 12). The Dormant Commerce Clause prohibits states from enacting legislation that
“unjustifiable…discriminate[s] against or burden[s] the interstate flow of articles of commerce.”
33
Chambers Medical Technologies of South Carolina, Inc. v. Bryant, 52 F.3d 1252, 1256 (4th Cir.
1995) (citing Oregon Waste Sys., Inc. v. Dept. of Envtl. Quality, 511 U.S. 93 (1994)). “Even
when wholly intrastate disposal of hazardous waste can threaten interstate and foreign
commerce” because of the potential effect on the environments of other states through natural
contamination processes. Frier, 303 F.3d at 202. Therefore, in enacting RCRA to regulate the
disposal of hazardous waste, Congress plainly sought to deal with matter that substantially effect
interstate commerce. Id.
As previously discussed, New Union’s program is not equivalent to the federal program,
due especially to Pollutant X being transported on an unregulated railroad under RCRA to out-
of-state disposal areas and the removal of criminal sanctions for violations of RCRA. These
changes render New Union's program less stringent than the federal program and cause the New
Union railroad to become, essentially, a mobile environmental hazard. As discussed in section V
above, this situation presents an imminent hazard to the environment of New Union and
substantially effects the environment of anystatesthroughwhichtherailroadwilltravelor
PollutantX’sstoragedestination.
CONCLUSION
WHEREFORE, CARE respectfully requests that this honorable court, having jurisdiction
to decide all issues discussed herein, find that EPA wrongly and constructively denied CARE’s
petition for review of New Union’s hazardous waste program, and as such, that New Union’s
program is inefficient and fails to comply with the federal regulations and any other relief that
this court may find and deem appropriate.
APPENDIX
A
2000 Environmental Regulatory Adjustment Act Recognizing that Pollutant X is said by EPA and the World Health Organization to be among the most potent and toxic chemicals to public health and the environment; and Recognizing further that there are presently no treatment or disposal facilities in New Union designed and permitted to, or capable of, preventing exposure of persons or the environment to releases of Pollutant X; and Recognizing further that there are only nine treatment and disposal facilities in the country presently authorized by EPA under RCRA to treat or dispose of Pollutant X; NOW, THEREFORE, the Hazardous Regulation Act is amended to include the following: 1. Every facility generating wastes including Pollutant X shall submit to the DEP within the next ninety days a plan to minimize the generation of Pollutant X containing wastes and every year thereafter by December 31, shall submit to the DEP a report stating the reduction in generation of Pollutant X during the previous year and a plan for additional reduction of such waste in the following year, until such generation entirely ceases. 2. The DEP shall not issue permits allowing the treatment, storage or Disposal of Pollutant X, except for storage for less than 120 days while awaiting transportation to a facility located outside of the state and permitted and designed to treat or dispose of Pollutant X. 3. Any person may transport Pollutant X through or out of the state to a facility designed and permitted to treat or dispose of Pollutant X, provided, however, that such transport shall be as direct and fast as is reasonably possible, with no stops within the state except for emergencies and necessary refueling. (Rec. doc. 4 for 2000, pp. 105-107)
