Appendix — Hazardous Waste Treatment Council v. Environmental Protection Agency

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 1988 Decided October 7, 1983

No. 86-1143

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner

IJ.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Re spond nts

EDISON ELECTRIC INSTITUTE, et al.,

Intervenors

([HWTC IT)

Petition for Review of an Order of the

Environmental Protection Agency

David R. Case for petitioner. Ridgway M. Hall, Jr.

also entered an appearance for petitioner.

Steven E. Silverman, Attorney, Environmental Pro-

tection Agency, with whom Roger J. Marzulla, Acting

Assistant Attorney General, and Brian V. Faller, Attor-

ney, Department of Justice, were on the brief, for

respondents.

William R. Weissman, with whom Toni K. Allen was

on the brief, for intervenors Edison Electric Institute,

et al. Sue M. Briggum and Douglas H. Green also en-

tered appearances for intervenors.

2a

Before BUCKLEY and WILLIAMS, Circuit Judges, and

EDWARD D. RE,* Chief Judge, U.S. Court of Interna-

tional Trade.

Opinion Per Curiam.**

PER CURIAM: The Hazardous Waste Treatment Coun-

cil petitions for review of the Environmental Protection

Agency’s rules concerning burning of hazardous wastes,

including used oil, as fuel. Petitioner attacks the rules

because they (1) fail to regulate generators, transport-

ers, and others who deal with used oil, (2) insuffi-

ciently regulate used oil that exhibits the characteristics

of a hazardous waste, (3) regulate under the used oil

(rather than the hazardous waste) rules those who gen-

erate a small quantity of hazardous waste and mix it

with used oil, (4) permit circumvention of the rules by

the dilution of used oil with virgin oil, and (5) fail to

regulate certain combustion residuals resulting from the

burning of hazardous waste fuels. We conclude that peti-

tioner has representational standing to raise all but the

last challenge. On the merits, we uphold the regulations

petitioner had standing to challenge as reasonable con-

structions of the statute.

I. BACKGROUND

A. Statutory and Regulatory Background

The statutory and regulatory treatment of hazardous

wastes in general and used oil in particular is described

more fully in a companion case, Hazardous Waste Treat-

ment Council v. EPA, No. 86-1658 (“HWTC I”) issued

today. Subtitle C of the Resource Conservation and Re-

covery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6921-6939a

(1982 & Supp. II 1985), establishes a comprehensive

* Sitting by designation pursuant to 28 U.S.C. § 293(a) (1982).

** Judge Williams authored Part II.A. dealing with standing.

Judge Buckley authored the balance of the opinion.

ee et

3a

scheme to regulate hazardous wastes. This scheme ap-

plies when the Environmental Protection Agency (“EPA”

or “Agency”) identifies (“lists”) a substance as a haz-

ardous waste, or when a substance exhibits one of the

technical characteristics of hazardousness developed by

the EPA. See id. at § 6921(b) ; 40 C.F.R. §§ 261.10-.11

(1987) (criteria for listing) ; id. at $§ 261.20-.24 (char-

acteristics of hazardous wastes) .

Congress supplemented the RCRA by requiring the

EPA to promulgate standards for hazardous waste

burned as fuel, whether the hazardous waste is burned

alone or in combination with another substance. 42

U.S.C. § 6924(q) (1) (Supp. HI 1985).

Congress also direeted the EPA to deal with used oil.

Section 7 of the Used Oil Recycling Act of 1980

(“TIORA”), Pub. L. No. 96-468, 94 Stat. 2055 (codified

as amended at 42 U.S.C. § 6935(a) (Supp. [II 1985) ),

authorizes the Agency to regulate recycled oil, whether

or not it classifies such oil as hazardous under subtitle

C of the RCRA. (Recycled oil includes used oil that is

burned, the subject of the challenged regulations. 49

U.S.C. § 6903(37) (1982).) In 1984, Congress directed

the EPA to determine whether to list used oils as haz-

ardous wastes. 42 U.S.C. § 6935(b) (Supp. III 1985).

If it listed any, the Agency was to promulgate spe-

cial regulations for the generators, transporters, and re-

cyclers of used oil. Id. at $$ 6935(c) & (d). In HWTC

I, we overturned the EPA’s decision not to list any re-

cycled oils as hazardous under section 6935(b).

Finally, 42 U.S.C. § 6921(d) (4) (Supp. III 1985)

permits the EPA to exercise its discretion whether to

regulate those who generate 100 kilograms or less of

hazardous waste per month.

B. Agency Action

The final rule that petitioner challenges, 50 Fed. Reg.

49,164 (1985) (codified at 40 C.F.R. pts. 261, 264-66,

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271) establishes two general categories for used oil that

is burned for energy recovery. The first category is

hazardous oil, which is defined as used oil deliberately

mixed with hazardous waste. Hazardous oil is regulated

in the same manner as any other hazardous waste fuel.

50 Fed. Reg. at 49,175-78; see 40 C.F.R. pt. 266, sub-

part D (1987) (hazardous waste fuel regulations). Used

oil that contains 1,000 parts per million (“ppm’’) of total

halogens is presumed to be hazardous oil. The presump-

tion can be rebutted by the holder of the oil. 40 C.F.R.

§ 266.40(c). All other used oil is classified simply as

used oil, even if it has acquired the characteristics of

hazardous waste in the course of its normal use. Jd. at

§ 266.40(d). (We shall refer to this category as “regu-

lated used oil.’’)

The Agency has promulgated a variety of specifications

for regulated used oil relating to characteristics such as

ignitibility and the concentration of certain contami-

nants. Id. at § 266.40(e). “Specification” oil (oil that

meets the specifications) is subject only to analysis and

recordkeeping requirements. Jd. & § 266.43(b). “Off-

specification” oil may be burned only in certain types of

industrial boilers, id. at § 266.41; marketers and indus-

trial burners must comply with certain administrative

requirements, id. at §§ 266.43-.44. The EPA permits

off-specification oil to be mixed with previously unused

(“virgin”) oil so as to dilute the contaminant concentra-

tion and thus meet the specifications. 50 Fed. Reg. at

49,187-88.

The rules also deal with so-called small quantity gen-

erators, i.e., those which produce 100 kilograms or less

of hazardous waste per month. The Agency has deter-

mined that such wastes ordinarily will not be regulated,

51 Fed. Reg. 10,146, 10,153 (1986) (codified as amended

at 40 C.F.R. § 261.5 (1988)), and that determination

has not been challenged. When these wastes are com-

bined with used oil, however, the mixture is treated only

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as regulated used oil. As such, it is not subject to the

more stringent regulations applicable to other hazardous

waste fuels.

Finally, the Agency concluded that under the Bevill

Amendment, 42 U.S.C. § 6921 (b) (3), residues from

burning habardous waste fuels in mining furnaces and

cement kilns would be exempt from regulation, as would

residues from coal-burning utility boilers in which haz-

ardous waste was fifty percent or less of their fuels.

Il. STANDING AND JURISDICTION

A. Standing

The Hazardous Waste Treatment Council is a national

trade organization of firms engaged in the treatment of

hazardous waste and the manufacture of equipment for

that purpose. The gist of its complaint here is that

EPA’s regulations are not comprehensive and strict

enough to comply fully with the controlling statute,

RCRA. Concerned with the apparent anomaly of regu-

lated entities demanding stricter regulation, we requested

the parties to brief the issue of standing. Besides its

brief, the Council has submitted the affidavits of its exec-

utive director and also of executives of five member

companies.

We conclude that the Council has standing insofar as

it represents members on whom regulatory laxity may

inflict environmental injury; we reject standing for it as

representative of firms that may suffer competitive loss

because EPA has not forced on their competitors as

demanding (and expensive) techniques as they them-

selves employ.

1. Allegations as to Standing.

The Council’s member firms operate facilities in 48

states. They provide treatment or disposal services em-

ploying both established and emerging technologies and

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methods for treatment and management: incineration

and other thermal destruction, reclamation, biological and

chemical treatment, land disposal after pre-treatment,

and hazardous site cleanups. A number of member com-

panies are engaged in the reclamation of used oil, the

blending of used oil for use as industrial fuel, and the

treatment and disposal of used oil.

The Council’s Articles of Incorporation declare that

among its purposes is

To promote the protection of the environment

through the adoption of environmentally sound pro-

cedures and methods of destroying and treating haz-

ardous wastes and the proper management of resi-

dues of those treatment and destruction processes.

The affidavits submitted by the Council and various

members reveal the members’ varied relations to the sub-

stantive issues raised in this case. We can identify three

different types:

a. Competitor claims. At least three members claim

that the asserted laxity of the regulations will diminish

the market for their high-tech contro] services. (CF Sys-

tems Corporation, Swatz Affidavit; SYSTECH Corpora-

tion, Eifert Affidavit; Ross Environmental Services, Stiff

Affidavit.) Firms with contaminated used oil on hand

will, they argue, be free to re-use that oil without either

using the treatment services of Council members or in-

curring the expense of themselves providing the high-

quality treatment that Council members offer. (Alterna-

tively, such firms may sell the contaminated used oil to

others for their use, again without either using the serv-

ices of these Council members or incurring comparable

costs.) As a result, the market for the services of these

members of the Council will be smaller than it would

have been if the EPA had adopted the Council’s views.

The affidavit of the Council’s executive director, Richard

C. Fortuna, refers solely to this injury.

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Ross and yet another company (ThermalKEM) assert

a variation on this claim. The variation requires special

mention because it is the sole injury that the affidavits

appear to link to the Council’s “Bevill Amendment”

claims (contentions that the EPA has given too broad

a construction to the exemptions provided by that

Amendment). These companies incur substantial costs

for the disposal of ash from their own incineration fa-

cilities, costs evidently mandated by existing regulation.

As a result of EPA’s broad definition of the Bevill

Amendment, certain utilities and smelters—‘Bevillized

facilities,” as they put it—will be free to generate ash

without incurring comparable costs. Thus the EPA’s rul-

ing evidently deprives Ross and ThermalKEM of a po-

tential market. Moreover, to the extent these member

firms compete with Bevillized facilities as sellers of items

produced with hazardous wastes, the EPA ruling tends

to enable the Bevillized competitors to undersell them.

b. Consumer claims. BVER Environmental asserts

that it is in the business of receiving non-hazardous used

oil from héavy manufacturing industries for processing

and resale as boiler fuel. It claims that its receiving

facilities are injured when it receives adulterated or con-

taminated used oils, and that it is expensive to test every

tankload. Receipt of a single 5,000-gallon contaminated

tankload may cause it to lose as much as $100,000. More

stringent EPA regulations would tend to protect it from

this sort of injury. (Policow Affidavit. )

ce. Claims of supply diminution. Affidavits filed by sev-

eral members assert that the alleged regulatory laxity

will cause their supply of contaminated used fuels to be

diverted elsewhere. (SYSTECH Corporation, Eifert Affi-

davit; Ross Environmental Services, Stiff Affidavit;

ThermalKEM Inc., Zeigler Affidavit.) These affidavits

make no effort to explain how regulatory laxity reduces

supply in any normal sense of the word. So far as we

are able to discern, these claims must fit into one of the

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two categories discussed above. Either the firms suffer

because there is less demand for their services or because

the oils they receive are less pure. Accordingly, we drop

these allegations from any separate consideration here.

2. Application of Standing Principles.

It is a commonplace that standing encompasses two

components: constitutional and prudential. For constitu-

tional standing, a plaintiff must allege personal injury

fairly traceable to the defendant’s allegedly unlawful con-

duct and likely to be redressed by the requested relief.

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 472

(1982). For prudential standing, a plaintiff usually must

show, in addition, that “the interest sought to be pro-

tected by the complainant is arguably within the zone of

interests to be protected or regulated by the statute...

in question,” Association of Data Processing Service Or-

ganizations, Inc. v. Camp, 397 U.S. 150, 153 (1970).

Under the zone of interests test, the “essential inquiry

is whether Congress ‘intended for [a particular] class

(of plaintiffs] to be relied upon to challenge agency disre-

gard of the law.’” Clarke v. Securities Industry Ass’n,

107 S. Ct. 750, 757 (1987). (An alternative basis for

prudential standing, resting on non-statutory interests,

is also considered below.) The problem here lies with pru-

dential standing.

a. The consumer claims. We have no difficulty find-

ing that the consumer interests represented by the

Council are entitled to standing. According to the

affidavit of the affected member company’s execu-

tive, it suffers direct losses as a recipient of con-

taminated used oils. That the injury is commercial is

no obstacle. “[S]neering at [commercial] gains by add-

ing ‘mere’ to them does not make them go away.” United

States Department of the Air Force v. FLRA, 838 F.2d

229, 233 (7th Cir. 1988). Owners of a lake who licensed

9a

its used by fishermen and boaters would surely have

standing to attack regulatory laxity that led to increased

water pollution; there appears no principle by which one

could reasonably distinguish the injury alleged here.

We will address below the problem of whether the

Council is an appropriate representative of the consumer

interests of BVER.

b. The competitor claims. The Council’s competitor

claims appear quite similar to those asserted in Calumet

Industries, Inc. v. Brock, 807 F.2d 225 (D.C. Cir. 1985).

There the petitioners objected to the Occupational Safety

and Health Administration’s decision to adopt a narrow

definition of the class of oils that vendors were required

to label as health hazards. Petitioners’ oils indisputably

required such labelling. We found that “the interest to be

protected by the OSH Act is worker safety .- - and not

business profits” and consequently held that “Tals peti-

tioners here [did] not come before us as protectors of

worker safety, but instead as entrepreneurs seeking to

protect their competitive interests, we think it plain they

lack standing.” Jd. at 228 (emphasis in original).

Here, however, the Council asserts that its interests,

though pecuniary, are in syne with those sought to be

served by RCRA. In essence they suggest that tightening

of environmental standards will generally foster not only

a cleaner environment but also the member companies’

profits, as it will expand the market for their services.’

1 As its executive director notes, the Council

is unique in that it represents firms whose econemic interests

and future viability depend on the presence, not the absence, of

appropriate regulations for the protection of the environment

which create the demand for their advanced waste treatment

and management services. ... Thus the linkage between effec-

tive implementation and enforcement by EPA of regulatory

programs under RCRA, increased protection of human health

and the environment, and increased use of the waste treatment

services provided by the HWTC member companies is a direct

10a

The Supreme Court’s decision in Clarke leaves the

status of this sort of incidental benefit somewhat unclear.

Clarke explained that the zone of interests “test is not

meant to be especially demanding; in particular, there

need be no indication of congressional purpose to benefit

the would-be plaintiff. Investment Company Institute,

supra {401 U.S. 617 (1971)].” 107 S. Ct. at 757 (foot-

notes omitted). On the other hand, it said the test “‘de-

nies a right of review if the plaintiff’s interests are so

marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be as-

sumed that Congress intended to permit the suit.” Jd.

We must thus find operational meaning for a test that

demands _less than a showing of congressional intent to

benefit but more than a “marginal[] rela{tionship]” to

the statutory purposes.

The answer may lie in presumptions revolving around

the congressional intent to benefit. Where that intent is

plain, we may entertain a presumption of standing—a

presumption that can be overcome by, for example, a find-

ing that suit by intended beneficiaries would “severely

disrupt [a] complex and delicate administrative scheme.”

Block v. Community Nutrition Institute, 467 U.S. 340,

348 (1984), quoted in Clarke, 107 S. Ct. at 757. In the

absence of apparent congressional intent to benefit, how-

ever, there may still be standing if some factor—some

one. HWTC exists to represent the collective interest of its

member companies in proper environmental control.

Fortuna Affidavit at 2-3.

*It further observed that our decision in Control Data Corp. v.

Baldrige, 655 F.2d 283, 293-94 (D.C. Cir.), cert. denied, 454 U.S.

881 (1981), to the extent that it “suggests otherwise,” is “incon-

sistent with our understanding of the zone of interest test, as now

formulated.” Jd. at 757 n.15. We followed Control Data in Glass

Packaging Inst. v. Regan, 737 F.2d 1083 (D.C. Cir.), cert. denied,

469 U.S. 1035 (1984), and Copper & Brass Fabricators Council, Inc.

v. Department of the Treasury, 679 F.2d 951 (D.C. Cir. 1982),

which are presumably condemned to the same extent.

ee

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indicator that the plaintiff is a peculiarly suitable chal-

lenger of administrative neglect—supports an inference

that Congress would have intended eligibility. Cf. Haitia

Refugee Center v. Gracey, 809 F.2d 794, 812-13 (D.C.

Cir. 1987) (pre-Clarke case stating that the initial in-

quiry is whether “from the face of the statute” the in-

terest was arguably intended to be protected or regulated,

but that clear evidence in the legislative history of intent

to afford or deny standing may rebut the initial answer).

Here the Council points essentially to Congress’s indis-

putable intent to encourage proper disposal and recycling

of hazardous wastes. See, e-g., 42 US.C. §§ 6901(a) (4),

6902(a)(6). But that intent, of course, shows neither

that Congress intended to benefit recycling and disposal

firms nor that such firms’ interests are more than “mar-

ginally related” to Congress's environmental purposes.

Whenever Congress pursues some goal, it is inevitable

that firms capable of advancing that goal may benefit.

If Congress authorized bank regulators to mandate physi-

cal security measures for banks. for example, a shoal of

security services firms might enjoy a profit potential—

detective and guard agencies, manufacturers of safes, de-

tection devices and small arms, experts on entrance con-

trol, ete. But in the absence of either some explicit evi-

dence of an intent to benefit such firms, or some reason

to believe that such firms would be unusually suitable

champions of Congress’s ultimate goals, no one would

suppose them to have standing to attack regulatory laxity.

And of course a rule that gave any such plaintiff stand-

ing merely because it happened to be disadvantaged by

a particular agency decision would destroy the require-

ment of prudential standing; any party with constitu-

tional standing could sue.

It is worth remembering that judicial intervention may

defeat statutory goals if it proceeds at the behest of in-

terests that coincide only accidentally with those goals.

The companion case, Hazardous Waste Treatment Coun-

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beneficiary of a regulatory program could so character-

ize it; to accept the characterization as a basis for stand-

ing would eliminate the prudential standing requirement.

As the consumers of the environmental purity afforded

by RCRA seem highly suitable champions of enforcement,

and we find no clue of congressional intent to rely on

other champions, we find the entry-restriction cases in-

applicable.

Nor does the fact that RCRA exposes some of the

activities of petitioner’s members to reguiation afford

the Council prudential standing. A party is “regulated”

for purposes of the “zone” test only if it is regulated by

the particular regulatory action being challenged. In

Calumet Industries, Inc. v. Brock, 807 F.2d 225 (D.C.

Cir. 1986), where petitioners were clearly subject to the

enabling act itself, we found that they lacked standing

because they were “not directly regulated by the rulings

being challenged in this case. Rather, a more appro-

priate description is that [they] operate[] in an indus-

try which is regulated by the rulings but do[] not oper-

ate in that sphere of the industry which is the object of

the regulation.” 807 F.2d at 229 (quoting Tax Analysts

and Advocates v. Blumenthal, 566 F.2d 180, 1438 n.82

(D.C. Cir. 1977), cert. denied, 434 U.S. 1086 (1978)).

It is possible that some of the regulations adopted

here apply to some members of petitioner. But in view

of the nature of petitioner’s claim, that does not render

Calumet any less relevant. Petitioner wants to increase

the regulatory burden on others. Its interest lies in the

competitive advantage that its members might secure if

the government imposed higher costs on other firms. As

noted above, that interest carries a considerable potential

for judicial intervention that would distort the regulatory

process. As in the prior analysis, we see no special

reason to suppose that Congress might have thought them |

suitable advocates of the environmental interests under-

lying the statute.

ee

15a

Finally, we must consider a line of cases finding pru-

dential standing for those who sell to regulated parties

and complain that a regulatory restriction will curtail

its opportunities to sell to those parties. See, e.g., Na-

tional Cottonseed Products Ass’n v. Brock, 825 F.2d 482

(D.C. Cir. 1987), cert. denied, 108 S. Ct. 1573 (1988) ;

FAIC Securities, Inc. v. United States, 768 F.2d 352

(D.C. Cir. 1985). In FAIC Securities then-Judge (now

Justice) Scalia endeavored to reconcile the cases seeming

to revolve around such a principle. His discussion fo-

cused primarily on some conflicting clues among the

precedents, but in a footnote he suggested an underlying

logic to the cases: the value of judicial protection for

the non-statutory rights of such parties to deal freely

with the regulated firms:

We salute in passing Professor Monaghan’s recent

admirable effort to bring coherence to the vendor-

vendee cases by analyzing them as properly first-

party standing cases, seeking to vindicate a “free-

dom to interact with a third person.” Monaghan,

Third Party Standing, 84 Colum. L. Rev. 277, 299

(1984). If we understand his analysis correctly, it

would lead to a conclusion of standing here. “(I]t

seems plain that either party to a regulated trans-

action can challenge any limitation in first party

terms, because for each party the claim takes the

following form: the state has advanced no sufficient

interest to justify prohibiting this interaction.” Id.

at 303 (footnote omitted).

768 F.2d at 360 n.5. See also Columbia Broadcasting

System, Inc. 2. United States, 316 U.S. 407, 422-23

(1942) (broadcasters have standing to challenge regu-

lations that interfere with ability to contract with radio

station owners whose licenses would be jeopardized by

continuing relations with broadcasters) ; United States v.

Storer Broadcasting Co., 351 U.S. 192, 188-200 (1956)

———LLL

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(same); Joint Anti-Fascist Refugee Committee v. Mc

Grath, 341 U.S. 128 (1951).

The Council plainly lacks any such non-statutory in-

terests. A firm has no common law interest, much less a

constitutional one, in having government drive business

its way or in having government force competitors’ ser-

vices to be of the same quality (and cost!) as its own.

ce. The Council as representative of BVER’s consumer

interest. Having concluded that the corsumer interest of

BVER (and any other member companies similarly situ-

ated) is sufficient for standing, but that the competitor

interests of member companies are not, we must consider

whether the Council has standing as a representative of

the former. As Hunt v. Washington State Apple Adver-

tising Comm’n, 4382 U.S. 338, 343 (1977), frames the

issue, it is whether “the interests [the association] seeks

to protect are germane to the organization’s purpose.”

The Council’s Articles of Incorporation say that it aims

(among other things] to “promote the protection of the

environment through the adoption of environmentally

sound practices and methods of destroying and treating

hazardous wastes.” We have no doubt of its bona fides;

one may fervently hope to do good even if he expects to

do well in the process. Further, while the fit between

Congress’s environmental goals and the Council members’

competitive ones is not tight enough for the latter to

afford the Council standing, the germaneness test is rela-

tively loose. As recently construed by this court, it re-

quires “mere pertinence between litigation subject and

organizational purpose.” Humane Society of the United

States v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988).° While

8See also Hotel & Restaurant Employees Union, Local 25 v.

Smith, 846 F.2d 1499, 1502-04 (D.C. Cir. 1988) (en bane) (separate

opinion of Judge Mikva); but see Hotel & Restaurant Employees

Union, Local 25 v. Attorney General, 804 F.2d 1256, 1276 (D.C. Cir.

1986) (separate opinion of Judge Silberman) (suggesting that the

17a

the Council’s stated devotion to the environment does not

excuse it from having to show a specific injury to the

members’ environmental interests, it does suggest that

BVER’s interest is germane to the Council’s purposes.

There remains this problem: HWTC’s primary inter-

ests have a quite different focus from BVER’s interest

in consuming relatively clean used oil. In Fortuna’s

affidavit, for example, there is not a single reference to

HWTC members’ interests as consumers; the entire focus

is on their interest in having EPA create a market for

their services—with higher technology and at higher cost.

Does the potential split between those and the Council

members’ interest as environmental consumers render the

latter non-“germane” under Hunt?

Under this court’s application of its “pertinence” test

in Humane Society of the United States v. Hodel, 840

F.2d 45 (D.C. Cir. 1988), the potential split appears no

bar. The court had identified as sufficient for standing

the Humane Society’s members’ aesthetic interests in see-

ing animals and birds on wildlife refuges, and in not

seeing animal corpses and environmental degradation.

The Society’s articles of incorporation spoke exclusively

of the protection of all living things “' presumably for

their own intrinsic worth),” id. at 53, but nothing of the

human interest in seeing these living things. The court

found the relationship sufficient under its “nertinence”’

test. Id. at 59-60.

The interests found within the “zone” in Humane

Society are ones that normally, but not invariably would

be seen as part of the broader goal to which the Society

was explicitly committed. But one can imagine conflicts:

optimal life for a species might require seclusion from

human viewers. Indeed the court recognized the potential

rights vindicated must be “the sort of rights that by their nature

relate to a particular organization”), vacated and aff'd en banc by

equally divided court in the decision Gited immediately above.

18a

conflict, but read prior cases to preclude its being treated

as an obstacle to the Society’s standing. Jd. at 59-60

n.25. There is clearly some tension between this relaxed

rule and the prudential insistence that the parties have

interests within the statutory goals: if suits by parties

with interests outside or at odds with those goals may

lead a court to interventions that fail to advance those

goals, then so may suits by internally conflicted orga-

nizations. But perhaps the duty of the association’s

directors to represent all elements fairly is thought to

mitigate the risk. In any event, under Humane Society

the Council appears to be an adequate representative of

the BVER environmental consumer interest.

d. The Council’s standing in its organizational capac-

ity. The Council argues that EPA’s alleged illegalities

impinge upon a number of its organizational interests:

they “damage the public trust in, and acceptability of,

responsible treatment businesses and technologies’; by

defeating its efforts to bring about proper management

of used oils, EPA’s illegalities diminish the Council’s

“ability to attract new members and retain existing mem-

bers”; they diminish its ability “to refer potential cus-

tomers who need treatment services . . . to member com-

panies”; and, as the challenged decisions exempt certain

generators, collectors and blenders from reporting re-

quirements, the illegalities thwart the Council’s “ability

to obtain information necessary for its educational and

promotional activities.” HWTC’s Supplemental Brief

Regarding Prudential Standing at 13-14.

Assuming arguendo that these injuries satisfy the

constitutional component of standing, all one need say

here is that the Council has made no effort whatever to

link them to the statutory purposes. Of course RCRA

seeks to improve the environment, and, as we have noted,

promotion of environmental quality is among the goals of

the Council. In the Council’s view, this general coin-

cidence of goals should suffice to bring the Council’s or-

19a

ganizational interests within prudential standing re-

quirements: any decision that disadvantages the Council

thwarts RCRA. But plainly this is not enough. If it

were, persons with only a “generalized grievance[],”

concededly insufficient for standing, see Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 217

(1974), court simply form an organization to advance

their grievance, and, whenever an agency decision of-

fended their position, secure standing by asserting that

it had thrown practical roadblocks in the way of the

organization’s success. See Haitian Refugee Center v.

Gracey, 809 F.2d 794, 813-14 (D.C. Cir. 1987) (citing

cases).

We find that the Council has standing as the repre-

sentative of BVER’s consumer environmental interests.

These interests do not encompass the Council’s Bevill

Amendment contentions, which accordingly we do not

reach.

B. Jurisdiction

Our appellate jurisdiction is premised on 42 U.S.C.

§ 6976(a) (1) (1982), which authorizes review under the

Administrative Procedure Act, 5 U.S.C. $§ 701-06 (1982),

of “final regulations” and the “denial of any petition

for the promulgation . . . of any regulation... .” We

recently interpreted this provision in United Technologies

Corp. v. EPA, 821 E2d 714, 721 (D.C. Cir. 1987). The

Environmental Defense Fund (“EDF”) challenged an

EPA rule regulating certain waste management units

because it failed to implement the statutory directive to

regulate more comprehensively. EDF did not challenge

the regulations actually promulgated but argued that the

Agency should have promulgated a different rule. We

dismissed the petition for lack of jurisdiction because it

was not a challenge to the promulgation or denial of a

petition to promulgate any rule. Had EDF petitioned

the Agency to promulgate the rule under 42 U.S.C. § 6974

(1982), it could have sought review if the petition had

been denied.

20a

United Technologies disposes of petitioner’s challenge

to the scope of the rules. Petitioner claims the rules do

not go far enough because they fail to regulate gener-

ators and transporters of used oil, as well as facilities

that store and blend used oil. Like EDF, petitioner ar-

gues that the Agency should have promulgated rules that

it has not promulgated.

Petitioner seeks to escape the force of United Tech-

nologies by characterizing its argument as a challenge to

the regulations as promulgated. But an agency’s failure

to regulate more comprehensively is not ordinarily a basis

for concluding that the regulations already promulgated

are invalid. “The Agency might properly take one step

at a time.” United States Brewers Ass’n v. EPA, 600

F.2d 974, 982 (D.C. Cir. 1979). Unless the agency’s

first step takes it down a path that forecloses more com-

prehensive regulation, the first step is not assailable

merely because the agency failed to take a second. The

steps may be too plodding, but that raises an entirely

different issue over which the district courts might have

exclusive original jurisdiction. 42 U.S.C. § 6972(a)

(1982 & Supp. III 1985); Sierra Club v. Thomas, 828

F.2d 783, 787-92 (D.C. Cir. 1987). Petitioner does not

claim such a delay.

Petitioner’s basic argument is that the promulgated

regulations “fail to include necessary requirements” of

the statute—not because the EPA ignored a factor that

the statute requires it to consider, but only because it

has not fully implemented the statutory goal. We lack

jurisdiction over that claim.

III. STANDARD OF REVIEW

In reviewing an agency’s construction of its governing

statute, we first ask whether Congress has spoken to the

precise question at issue. Chevron U.S.A., Inc. v. NRDC,

Inc., 467 U.S. 837, 842 (1984). If so, we must enforce that

unambiguously expressed intent. Jd. at 842-43. Congress’

2la

intent is determined in the first instance by examining

the “particular statutory language at issue, as well as

the language and design of the statute as a whole.”

K Mart Corp. v. Cartier, Inc., 108 S. Ct. 1811, 1817

(1988). If the language and structure of the statute

express a clear intent, we ordinarily will not examine

the legislative history. “Unless exceptional circumstances

dictate otherwise, ‘{w]hen we find the terms of a statute

unambiguous, judicial inquiry is complete.’” Burlington

N. R.R. Co. v. Oklahoma Tax Comm’n, 107 S. Ct. 1855,

1860 (1987) (citation omitted). If Congress did not

have a specific intent, we ask whether the agency’s con-

struction of the statute is “rational and consistent with

the statute.” NLRB v. United Food & Commercial Work-

ers Union, Local 23, 108 S. Ct. 413, 421 (1987). Eve

if the legislative history is insufficient to establish a clear

intent under Chevron’s first step, it may be relevant in

determining the permissibility of the agency’s construc-

tion. See, e.g., Securities Industry Ass’n v. Board of

Governors, 847 F.2d 890, 896 (D.C. Cir. 1988).

IV. MERITS

A. Used Oil with the Characteristics of Hazardous

Waste

As explained above at 4, the EPA’s less stringent used

oil regulations apply to used oil contaminated solely

through ordinary use, even though it exhibits the char-

acteristics of hazardous waste. Petitioner argues that

this violates 42 U.S.C. ¢ 6924(q) (Supp. Ill 1985),

which it interprets as requiring the EPA to treat all

fuel that exhibits the characteristics of a hazardous waste

under the hazardous waste fuel regulations.

The statute requires the EPA to promulgate such

standards for hazardous waste fuel “as may be necessary

to protect human health and the environment.” 42 U.S.C.

§ 6924(q). But it grants considerable discretion to the

22a

Agency in formulating these standards: “Such standards

may include any of the requirements set forth in [§ 6924

(a)] as may be appropriate.” Id. (emphasis added).

(Section 6924 (a) lists various requirements (e.g., record-

keeping, monitoring, treatment practices) to be imposed

by regulation by the EPA on hazardous waste treatment,

storage, and disposal] facilities. )

The Agency complied with its statutory obligation by

promulgating standards for all used oil that exhibits the

characteristics of hazardous waste and is burned as fuel:

Hazardous used oil is regulated strictly, off-specification

used oil is regulated less strictly, and specification used

oil is regulated only slightly. This regulatory scheme re-

flects the EPA’s expert judgment concerning the amount

of regulation necessary to protect human health and the

environment from the adverse effects of various types of

used oil. The record amply supports this judgment, and

petitioner does not seriously challenge the factual basis

for the Agency’s classifications.

The language of section 6924(q) permits the Agency

to impose only such of the requirements of section 6924

(a) “as may be appropriate.” The structure of the stat-

ute confirms the EPA’s broad discretion to impose less

stringent requirements on used oil fuel. The EPA is

authorized by 42 U.S.C. § 6935(a) to regulate recycled

oil (including oil that is burned). Such regulations are

not to “discourage the recovery or recycling of used oil,

consistent with the protection of human hea'th and the

environment.” IJd.; see also id. at §§ 6935(c) & (d).

These provisions contemplate EPA rules for regulated

used oil fuel that may be less stringent than rules ap-

plicable to other hazardous wastes.

Petitioner further suggests that the regulations irra-

tionally distinguish between used oil displaying hazardous

characteristics based on how the oil obtained those char-

acteristics. The Agency provided a reasoned basis for

this distinction. When oil acquires the characteristics of

23a

hazardous waste through normal use, overly stringent

regulations may discourage burning. This might encour-

age improper disposal of used oil, thereby increasing en-

vironmental harm while decreasing energy conservation.

On the other hand, the EPA thought used oil that is delib-

erately mixed with hazardous waste should be regulated

as stringently as other hazardous waste fuel. Less strin-

gent regulation would encourage such mixing to avoid the

hazardous waste fuel regulations, resulting in greater

environmental danger.

In HWTC I, we reversed the EPA’s decision not to list

recycled oil as a hazardous waste. If the Agency decides

that the technical criteria for listing are met, it will then

be required to determine what standards to promulgate

under 42 U.S.C. §§ 6935 (c) & (d), which will require

the EPA to review the appropriateness of its rules con-

cerning regulated used oil.

B. Small Quantity Generators

When used oil is mixed with hazardous waste, it is

ordinarily treated as hazardous used oil. But when the

hazardous waste is produced by a small quantity gen-

erator, the rules treat the mixture only as regulated used

oil. Petitioner argues that this amounts to an exemption

of such mixtures from regulation in violation of section

6924(q). We disagree.

First, as we have just explained, the Agency’s rules

concerning regulated used oil adequately carry out its

responsibilities under section 6924(q). The Agency

reasonably concluded that the burdens on small quantity

generators resulting from the hazardous fuel regulations

outweighed their benefits. Applying the less stringent

rules concerning regulated used oil adequately fulfills its

statutory mandate.

Second, acting under 42 U.S.C. § 6921(d) (4), the

Agency already exempted small quantity generators from

24a

hazardous waste regulations. If small quantity gener-

ators mix their hazardous waste with used oil, however,

they are subject to the standards applicable to regulated

used oil. Admittedly, these regulations are less stringent

than the hazardous oil regulations, but they are more

stringent than the exemption small quantity generators

would enjoy if they did not mix.

Petitioner nevertheless argues that the special treat-

ment of small quantity generators invites circumvention

of the hazardous oil regulations. When used oil has been

mixed with hazardous waste, there is no way to deter-

mine whether the hazardous waste came from a small

quantity generator. Large quantity generators might be

tempted to mix their wastes with oil and disguise the

mixtures as produced by small quantity generators. The

Agency thought this result unlikely given the presump-

tion that oil with 1,000 ppm of total halogens is hazardous

used oil. The burden will be on the holder of the oil to

prove that the hazardous waste part of the mixture was

produced by a small quantity generator. The EPA’s ex-

pert judgment was reasonable.

C. Dilution

As discussed above at 4, regulated used oil fuel is

divided into two categories: specification (subject to

minimal regulation) and off-specification. The specifica-

tions are designed to protect individuals having the great-

est exposure to the oil. Most of the specifications are

expressed as percentages of total volume (ppm), and the

Agency will permit dilution of off-specification oil with

virgin oil in order to meet the specifications. Petitioner

claims that by permitting dilution, the rules will not

decrease total emissions of these toxic constituents, in

violation of the EPA’s duty to protect the environment.

42 U.S.C. § 6935 (a).

The EPA’s decision was permissible. First, Congress

has not spoken directly to the precise question at issue.

25a

See Chevron, 467 U.S. at 842. The statute requires the

EPA to regulate used oil fuels “as may be necessary to

protect human health and the environment,” 42 U.S.C.

§ 6924(q); see also id. at $§ 6935(a) & (c), but it does

not specifically require the Agency to minimize total

emissions of toxic constituents from used oil into the

environment.

Petitioner nevertheless claims that Congress had a spe-

eific intent on this issue. It relies on a passage in the

House Report on the Hazardous and Solid Waste Amend-

ments of 1984. In discussing the provisions that became

sections 6935(c) and (d), which require the promulga-

tion of standards for used oil recycling facilities, the

Report explains that such standards might apply to the

end user. H. Rep. No. 198, pt. 1, 98th Cong., Ist Sess.

67 (1983). The Report continues:

This is not to say that these... standards must

necessarily apply to all end users of hazardous used

oil or used oil-derived products. (Indeed, it is the

Committee’s view that standards are most appro

priately applicable to the initial treater of hazardous

wuste used oil since, if contaminants are not removed

at this point, total pollutant loadings from end use

will not be reduced, even if the used oil is diluted

before end use.)

Id. at 68.

We do not agree that this parenthetical remark estab-

lishes congressional intent concerning the precise question

at issue.

Congress does not act, and cannot legally bind,

through its intent and expectation as such, whether

individually or collectively expressed, but only

through the laws that it enacts. Thus, the only in-

tent or expectation of Congress pertinent to our task

‘s its intent regarding the meaning of statutory lan-

guage or its expectation regarding the manner in

26a

which that language will be interpreted. ... [I]t is

absurd—indeed, lawless—to give legal effect to [leg-

islative history] that purport[s] to relate, not to the

meaning of the statute, but to the manner in which

a legally unconstrained agent of the Executive will

behave under it.

Center for Auto Safety v. Peck, 751 F.2d 1336, 1351

(D.C. Cir. 1985). Thus, “courts have no authority to

enforce principles gleaned solely from legislative history

that has no statutory reference point.” International

Bhd. of Elec. Workers, Local 474 v. NLRB, 814 F.2d

697, 712 (D.C. Cir. 1987) (emphasis original).

As the parenthetical sentence of the House Report does

not interpret a provision of the statute, it is not pertinent

in ascertaining legislative intent. This is not a case such

as Pierce v. Underwood, 108 §S. Ct. 2541 (1988),

in which the statute contains a phrase (“substan-

tially justified”) that could be interpreted in two

ways, and the legislative history might demonstrate that

Congress meant one way rather than the other. Here,

Congress gave the EPA a broad mandate—regulate as

“may be necessary to protect human health and the en-

vironment.” The sentence from the House Report does

not even purport to interpret the extent of the Agency’s

authority. It suggests how the Committee thought the

Agency should exercise that authority but provides no

assistance in interpreting ambiguous statutory language.

The most that can be said about the parenthetical sen-

tence is that it demonstrates that one of Congress’ goals

was to reduce total emissions. It does not indicate that

Congress desired the EPA to reduce total emissions at all

costs. As we discuss below, the Agency concluded that

prohibiting dilution would decrease total emissions but

would increase improper disposal of used oil, resulting in

greater environmental damage overall. Did Congress in-

tend that the Agency reduce total emissions even if this

27a

would result in increases in other types of environmental

damage? Congress did not speak to this precise question.

We therefore ask whether the Agency’s rule reflects a

permissible construction of the statute. The EPA was

confronted by conflicting objectives. It recognized that

its duty to protect the environment included a responsi-

bility to attempt to reduce total emissions. But it also

found that if it prohibited dilution, re-refiners would be

unable to deal with the resulting glut of used oil. This

would increase unregulated burning and dumping of used

oil, magnifying the overall damage to the environment.

The record supports this conclusion, and petitioner does

not challenge its factual basis.

The Agency’s resolution of the trade-off between con-

fliciing goals is the essence of the discretion Congress has

delegated it. When, as here, Congress has not spoken to

the precise question and the agency provides “a reason-

able explanation for its conclusion that the regulation

serves the . . . objectives [in question],” Chevron, 467

U.S. at 863, we will not overturn the agency’s judgment.

Continental Air Lines v. DOT, 843 F.2d 1444, 1450-54

(D.C. Cir. 1988)

V. CONCLUSION

That portion of the petition for review concerning the

exemption promulgated pursuant to the Bevill Amend-

ment is dismissed for lack of standing. In all other

respects, the petition for review is denied.

So ordered.

28a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-1143

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner

-V.

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents

Before: BUCKLEY and WILLIAMS, Circuit Judges and

EDWARD D. RE, Chief Judge, U.S. Court of

International Trade

ORDER

[Filed Dec. 20, 1988]

Upon consideration of the petitions for rehearing of

petition and respondent it is

ORDERED, by the Court, that the aforesaid petitions

are denied.

FOR THE COURT:

CONSTANCE L. DUPRE

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

29a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-1143

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner

Vv.

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents

Before: WALD, Chief Judge; ROBINSON, MIKVA, ED-

WARDS, RUTH B. GINSBURG, STARR, SILBER-

MAN, BUCKLEY, WILLIAMS, D.H. GINSBURG

and SENTELLE, Circuit Judges; and EDWARD

D. RE, Chief Judge, United States Court of

International Trade

ORDER

[Filed Dec. 20, 1988]

The Suggestion for Rehearing En Banc of Petitioner

Hazardous Waste Treatment Council has been circulated

to the full court. No member of the Court requested the

taking of a vote thereon. Upon consideration of the fore-

going it is

ORDERED, by the Court en banc, that the sugyestion

is denied.

FOR THE COURT:

CONSTANCE L. DUPRE

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Deputy Clerk

30a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 1988 Decided January 13, 1989

Nos. 87-1487, 87-1548

PETRO-CHEM PROCESSING, INC.,

Petitioner

Ve

E;NVIRONMENTAL PROTECTION AGENCY,

Respondent

Argued November 1, 1988 Decided January 13, 1989

No. 88-1177

HAZARDOUS WASTE TREATMENT COUNCIL,

Petitioner

V.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Petitions for Review of an Order of the

Environmental Protection Agency

Ridgway M. Hall, Jr. and Richard G. Stoll, with whom

Barbara A. Myers and R. Timothy McCrum were on the

joint brief for the petitioners in Nos. 87-1487 and 87-

1548. David B. Graham also entered an appearance for

petitioner in No. 87-1487.

3la

David R. Case for petitioner in No. 88-1177.

Scott A. Schachter, Attorney, Department of Justice,

with whom Roger J. Marzulla, Assistant Attorney Gen-

eral, Department of Justice, and Caroline H. Wehling,

Attorney, Environmental Protection Agency, were on the

brief, for respondent in Nos. 87-1487 and 87-1548.

Lisa F. Ryan, Attorney, Department of Justice, with

whom Roger J. Marzulla, Assistant Attorney General,

Department of Justice, Lawrence Jensen, General Coun-

sel, Frederic D. Chanania and Nandan Kenkeremath, At-

torneys, Environmental Protection Agency, were on the

brief, for respondent in No. 88-1177.

Charles F. Lettow, Matthew D. Slater and R. Kinnon

Goleman were on the brief for amicus curiae, urging dis-

missal of petition in No. 88-1177.

Before: RuTH B. GINSBURG, SILBERMAN and D.H.

GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH B.

GINSBURG.

GINSBURG, RUTH B., Circuit Judge: Petitioners Haz-

ardous Waste Treatment Council (HWTC) and Petro-

Chem Processing, Inc., in Nos. 87-1487 and 87-1548, chal-

lenge an Environmental Protection Agency (EPA or

Agency) time-extension decision; the challenged decision

enlarged by more than three years the deadline for “big

city” cement kilns to apply for “interim status,” which

would allow them to burn liquid hazardous waste without a

permit. Petitioners aslo challenge a decision of the Agency

that would allow St. Mary’s Peerless Cement Company, a

big city cement kiln in Detroit, to qualify for interim

status despite St. Mary’s alleged failure to meet the dead-

line for filing the requisite “Notification of Hazardous

Waste Activity.” Petitioners assert that these Agency

actions violate the Resource Conservation and Recovery

Act (RCRA), 42 U.S.C. §§ 6901-69911 (1982 & Supp.

32a

IV 1986), which establishes a comprehensive scheme to

regulate hazardous wastes, the Administrative Procedure

Act, 5 U.S.C. §§ 551-559, 701-706 (1982), and the EPA’s

own regulations. Petitioner HWTC, in No. 88-1177,' chal-

lenges EPA regulations authorizing for the first time the

disposal of hazardous waste in salt domes, salt bed

formations, underground mines, and caves. HWTC as-

serts that these regulations are incompatible with RCRA.

Bound by this court’s recent decision in Hazardous Waste

Treatment Council v. EPA, No. 86-1143 (D.C. Cir. Oct.

7, 1988), reh’g en bane denied (Dec. 20, 1988) (HWTC

IT), we dismiss these petitions on the ground that the

challengers lack standing to pursue judicial review.

I. COMPETITOR CLAIMS

In their initial briefs, filed before the opinion in

HWTC II issued, petitioners’ standing arguments tracked

those advanced and rejected in HWTC II. HWTC is a

national trade organization of firms engaged in the treat-

ment of hazardous waste and the manufacture of equip-

ment for the purpose; the organization alleged that it

had standing as a representative of its member com-

panies under Hunt v. Washington State Apple Acver-

tising Commission, 432 U.S. 333 (1977) (recognizing

organizational standing based on injuries to members if

the interests of those members are germane to the orga-

nization’s purpose and if the participation of individual

members is not required). Petro-Chem alleged injury on

its own behalf.

In Nos. 87-1487 and 87-1548, HWTC aleged that its

members would sustain competitive and economic injury

because of EPA’s extension of the interim status dead-

1 Petro-Chem Processing, Inc. v. EPA, Nos. 87-1487, 87-1548, and

Hazardous Waste Treatment Council v. EPA, No. 88-1177, were

briefed and argued separately. We consolidated the three review

petitions for disposition in this opinion.

334

line, 52 Fed. Reg. 34,779 (1987) (notice of extension of

compliance date), and the Agency’s grant of interim

status to St. Mary’s. Specifically, HWTC asserted that

St. Mary’s and other new entrants would avoid many of

the costs and the waiting period involved in obtaining a

permit and would reduce the supply of hazardous waste

available to HWTC’s members, thus depriving them of

revenue. Joint Brief of Petitioners at 8-9, 43-46 (Nos.

87-1487, 87-1548). Petro-Chem is a Deroit company

that blends hazardous waste fuels for burning in indus-

trial furnaces such as cement kilns; Petro-Chem alleged

that St. Mary’s entry into the market would reduce

Petro-Chem’s supply of hazardous waste and its blending

revenue because St. Mary’s fuel would be processed by a

competing blending operation. Jd. at 10, 62-63.

In No. 88-1177, HWTC alleged that its members would

suffer injury from (1) EPA’s determination, 52 Fed.

Reg. 46,946, 46,953 (1987) (preamble to final rule), to

allow the disposal of hazardous wastes into salt domes,

underground caves, and mines, through an “injection

well,” with only a RCRA “permit-by-rule” under 40

C.F.R. § 270.60(b), and (2) EPA’s definition of “miscel-

laneous unit,” 52 Fed. Reg. 46,963 (1987) (to be codified

at 40 C.F.R. § 260.10), to include salt domes, mines, and

caves, thereby allowing the disposal of hazardous waste

into such geologic repositories, by means other than an

injection well, subject only to the general performance

standard of subpart X, 52 Fed. Reg. 46,964-65 (1987)

(to be codified at 40 C.F.R. § 264.601), and not to any

specific technical standards. These EPA actions, allegedly

in violation of RCRA section 3004(b) (2), 42 U.S.C.

§ 6924(b) (2) (Supp. IV 1986), would, according to

HWTC, lead to the diversion of hazardous wastes into

geologic repositories and thus allow competitors using

these cheaper disposal methods to gain business at the

expense of HWTC members. Reply Brief of Petitioner at

4 (No. 88-1177).

34a

HWTC II held, however, that the prudential require-

ment for standing under RCRA was not met by HWTC’s

allegations that lax regulation of competitors would cause

economic harm to HWTC members. In that case, HWTC

sought review of EPA’s prescription, 50 Fed. Reg. 49,164

(1985), excluding from the hazardous waste fuel regu-

lations some used oil that has acquired the characteristics

of hazardous waste. HWTC charged that the exclusion

violated RCRA. The HWTC II panel held that HWTC’s

members’ interest in stricter regulation of their com-

petitors fell outside the zone of interests Congress in-

tended to protect in enacting RCRA. Firms concerned

about regulatory laxity, such as those represented by

HWTC, the court said, lacked standing “[i]n the absence

of any suggestion either of congressional intent to im-

prove the competitive position of high tech recyclers, or

of any reason to picture such firms as suitable challeng-

ers of the agency.” HWTC II, slip op. at 12-13. Neither

condition, the court concluded, was met by HWTC mem-

bers. The court discerned no congressional intent to im-

prove the competitive position of high tech recyclers.

Nor did it see any reason to regard such firms as “suit-

able challengers” of the Agency’s action.’

2 In the instant cases, HWTC also alleges institutional harm from

EPA’s actions over and above the impacts on its members. Spe-

cifically, HWTC alleges that EPA’s actions will frustrate the envi-

ronmental purpose and programs of HWTC, damage the public’s

trust in the hazardous waste treatment industry, and deprive HWTC

of dues by decreasing members’ income. Joint Brief of Petitioners

at 9-10, 52-54 (Nos. 87-1487 and 87-1548); Reply Brief of Petition-

ers at 7-8 (No. 88-1177).

This court rejected similar arguments concerning frustration of

the organization’s purposes and damage to the public’s trust in

HWTC II, however, because HWTC failed to link the alleged in-

juries to RCRA’s purpose. If a general coincidence of RCRA’s pur-

poses and HWTC’s goals were sufficient to satisfy the prudential

standing requirement, this court reasoned, “persons with only a

‘generalized grievance[ ],’ concededly insufficient for standing, could

simply form an organization to advance their grievance, and, when-

35a

On October 13, 1988, six days after HWTC II issued,

we requested supplemental briefing on prudential stand-

ing in these cases. In their supplemental briefs, petition-

ers argued that HWTC II was wrongly decided and indi-

cated HWTC’s intention to request rehearing en banc.

Petitioner HWTC Supplemental Brief at 1-7 & n.1 (No.

88-1177) ; Supplemental Brief of Petitioners at 1-6 & n.1

(Nos. 87-1487, 87-1548). This court denied rehearing

en bane in HWTC II on December 20, 1988. HWTC II

thus remains the law of the circuit; therefore petitioners’

arguments attacking that decision are unavailing.

At oral argument, HWTC attempted to distinguish the

legislative design of the provisions at issue in these cases

from the congressional intent found in HWTC II. To

this purpose, HWTC attached to Petitioner HWTC’s

Response to EPA’s Motion to Strike Affidavit of Adolph

B. Chilek (No. 88-1177) an “Addendum of Legislative

History on Congressional Intent to Benefit the Hazard-

ous Waste Treatment Industry.” The legislative history

thus cited by HWTC,? however, merely confirms “Con-

gress’s indisputable intent to encourage proper disposal

and recycling of hazardous wastes.” HWTC II, slip op.

at 11. That leitmotif, HWTC II settled, does not amount

ever an agency decision offended their position, secure standing by

asserting that it had thrown practical roadblocks in the way of the

organization’s successes.” HWTC II, slip op. at 19 (quoting

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217

(1974). HWTC’s new argument about the impact of a reduction in

dues is founded on the alleged competitive harm to members, and

hence cannot withstand HWTC I/ either.

8 See, e.g., H.R. Conr. REP. No. 1133, 98th Cong., 2d Sess. 80

(1984) (“advanced treatment, recycling, incineration and other

waste control technologies should replace land disposal”); S. Rep.

No. 284, 98th Cong., Ist Sess. 6 (1983) (capacity for “alternative

technologies” can “be developed if a viable market can be assured”) ;

H.R. Rep. No. 1918, 98th Cong., 1st Sess. 32 (1983) (“prudent pub-

lic policy” would “encourage the development of alternative treat-

ment technology and capacity”).

36a

to evidence either of “congressionai intent to improve the

competitive position of high tech recyclers, or of any

reason to picture such firms as suitable challengers” of

Agency departures from Congress’s ultimate goals. Jd. at

12-13. Petitioners cannot so easily avoid the reach of

HWTC II, nor can this panel; ruling in fidelity to that

decision, we hold that petitioners’ claims here fail to

meet the prudential standing requirement.

Il. DIRECT ENVIRONMENTAL CLAIMS

The HWTC II court did find standing for the organ-

ization as representative of one member firm; that firm,

HWTC alleged, was injured as a “consumer” of the oil

subject to the challenged regulations. HWTC asserted

that the firm’s facilities for receiving used oil are injured

by adulterated or contaminated used oils, and that it is

expensive to test every tankload. HWTC II, slip op. at 7.

More stringent EPA regulations would tend to protect

against this sort of injury.

HWTC’s charter states that it aims, among other

things, to “promote the protection-of the environment

through the adoption of environmentally sound practices

and methods of destroying and treating hazardous

wastes.” id. at 16. The court in HWTC II had “no doubt

of {[HWTC’s] bona fides” and held that the member

firm’s consumer interest was germane to the environ-

mental organizational purpose. Jd. The germaneness test

requires “mere pertinence between litigation subject and

organizational purpose.” Jd. Relying on the reasoning

in Humane Society of the United States v. Hodel, 840

F.2d 45, 58-60 (D.C. Cir. 1988}, the HWTC II panel

concluded that HWTC had standing to represent the con-

sumer environmental interest there raised. HWTC II,

slip op. at 18.

According to affidavits attached to the supplemental

briefs of petitioners, HWTC added two individuals as

37a

members on October 12, 1988. HWTC alleges direct

environmental harm to these two individuals, Adolph

Chilek and Larry Coogan, from the EPA actions chal-

lenged in No. 88-1177, and in Nos. 87-1487 and 87-1548,

respectively. Chilek owns a homestead located directly

on top of the Boling Salt Dome in Texas. Petitioner

HWTC Supplemental Brief at 7 (No. 88-1177). Coogan

lives and works near St. Mary’s kiln in Michigan.

Supplemental Brief of Petitioners at 6-7 (Nos. 87-1487,

87-1548). By asserting the interests of these new mem-

bers. HWTC seeks to bring the organization within

HWTC II’s consumer environmental injury holding.

The EPA has moved to strike the affidavits that allege

the membership of Chilek and Coogan in HWTC and

their threatened injuries. We agree with the EPA that

it would circumvent the time limit on filing petitions for

review under RCRA, 42 U.S.C. § 6976(a) (1) (1982), to

permit these new members, at this late date, to establish

standing for HWTC. Under the cited time prescription,

a party must file a petition for review of a regulation

within ninety days of promulgation of that regulation.

Neither Chilek nor Coogan was a member when HWTC

filed its petitions for review or at any other time dur-

ing the two relevant RCRA ninety-day time frames. The

regulations at issue in No. 88-1177 were published in the

Federal Register on December 10, 1987, and HWTC filed

a timely petition on March 2, 1988. The notice of exten-

sion at issue in Nos. 87-1487 and 87-1548 was published

in the Federal Register on September 15, 1987, and

HWTC filed a timely petition on October 6, 1987. Both

Chilek and Coogan would be time-barred if they asserted

their claims as individuals on October 12, 1988.

Under Hunt v. Washington State Advertising Commis-

sion, 432 U.S. 333 (1977), an organization’s standing

turns on its members’ standing to sue in their own right.

Id. at 343. Although the interests Chilek and Coogan

38a

assert may rank with the consumer interest held suffi-

cient for standing in HWTC II, these individuals did not

file timely petitions for review. Petitioners assert that

the time prescription, section 6976(a) (1), sets merely-a

“notice deadline.” Petitioners’ Memorandum in Opposi-

tion to Respondent’s Motion to Strike Affidavit at 8 (Nos.

87-1487, 87-1548). Circuit precedent instructs, however,

that the time direction in question reflects “ ‘the impor-

tant purpose of imparting finality into the administrative

process, thereby conserving administrative resources.’ ”

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 911

(D.C. Cir. 1985) (quoting Natural Resources Defense

Council v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981) ).

To allow a “new and improved” HWTC to establish

a judicially cognizable challenge several months beyond

RCRA’s prescription period would undercut “ ‘a deliber-

ate congressional choice to impose statutory finality on

agency orders.’”’ Jd. (quoting City of Rochester v. Bond,

603 F.2d 927, 935 (D.C. Cir. 1979)). Were we to agree

with HWTC, an organization without current standing

to sue could file a timely petition for review and thereby

extend the statutory period while it seeks out and signs

up a person who could have sued but did not do so within

the prescribed time. Such an approach to timeliness

would render the finality of agency action an uncertain,

sometimes thing.

Oil, Chemical and Atomic Workers International Union

v. OSHRC, 671 F.2d 643 (D.C. Cir.), cert. denied, 459

U.S. 905 (1982), is not precedent for the position peti-

tioners here urge. In that case we allowed a petitioner

to name the proper party respondent outside the sixty-

day review period provided by the Occupational Safety

and Health Act. Jd. at 653. The petitioner had inad-

vertently named the incorrect respondent, and the amend-

ment we permitted simply corrected the petition to read

as its should have and could have read within the statu-

tory period. In these cases, in contract, HWTC seeks to

40a

traced to the challenged action,’” as required by Su-

preme Court decisions intercepting Article III of the

Constitution. Valley Force Christian College v. Amer-

icans United for Separation of Church and State, Inc.,

454 US. 464, 472 (1982) (quoting Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 26, 41 (1976) ).

Rather, to the extent that this injury is self-inflicted, it

is “so completely due to the [complainant’s] own fault

as to break the causal chain.”* Unlike the “consumer”

firm in HWTC II, members choosing geologic reposi-

tories can avoid the threatened injury by choosing safer

methods. If they instead choose disposal methods they

believe to be unsafe, they presumably so do in their own

self-interest. It is of no moment for the inquiry at hand

that they may be “forced” by competitive pressures to

choose unsafe methods: we cannot deem them injured,

in the sense relevant under controlling precedent, by their

own choice to compete in kind.

CONCLUSION

For the reasons stated, the petitions for review in

these cases are dismissed. The petitioners, under circuit

precedent, lack standing to obtain judicial review. The

affidavits alleging membership to Chilek and Coogan can-

not establish HWTC’s standing to challenge regulations

under RCRA because the two individuals joined HWTC

outside the statutory period. Accordingly, the motions to

strike the two affidavits are dismissed as moot.

It is so ordered.

513 C. Wricnt, A. Miter & E. Cooper, FEDERAL PRACTICE AND

PROCEDURE: JURISDICTION 2d § 3531.5, at 458 (2d ed. 1984); see,

e.a., Diamond v. Charles, 476 U.S. 54, 69-70 (1986) (party's liability

for attorney’s fees was a consequence of his own decision to inter-

vene in the case, “cannot fairly be traced” to the law chalienged, and

cannot confer Article ITI standing); Pennsylvania v. New Jersey,

426 U.S. 660, 664 (1976) (injuries to plaintiff states’ fiscs were

“self-inflicted.” and no state “can be heard to complain about

damages inflicted by its own hand”).