Nos. 87-1487, 87-1548 Argued October 31, 1988.
No. 88-1177 Argued November 1, 1988.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
Petitioners Hazardous Waste Treatment Council (HWTC) and Petro-Chem Processing, Inc., in Nos. 87-1847 and 87-1548, challenge 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 also 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 deadline 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. §§ 6901-6991i (1982 & Supp. 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,
I. COMPETITOR CLAIMS
In their initial briefs, filed before the opinion in HWTC II, 861 F.2d 277, issued, petitioners' standing arguments tracked those advanced and rejected in HWTC II. HWTC is a national trade organization of firms engaged in the treatment of hazardous waste and the manufacture of equipment for that purpose; the organization alleged that it had standing as a representative of its member companies under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (recognizing organizational standing based on injuries to members if the interests of those members are germane to the organization'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 alleged that its members would sustain competitive and economic injury because of EPA's extension of the interim status deadline, 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
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 "miscellaneous 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).
HWTC II, 861 F.2d 277, held, however, that the prudential requirement 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 regulations some used oil that has acquired the characteristics of hazardous waste. HWTC charged that the exclusion violated RCRA. The HWTC II, 861 F.2d 277, panel held that HWTC's members' interest in stricter regulation of their competitors fell outside the zone of interests Congress intended 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 improve the competitive position of high tech recyclers, or of any reason to picture such firms as suitable challengers of the agency." HWTC II, 861 F.2d at 284. Neither condition, the court concluded, was met by HWTC members. The court discerned no congressional intent to improve the competitive position of high tech recyclers. Nor did it see any reason to regard such firms as "suitable challengers" of the Agency's action.
On October 13, 1988, six days after HWTC II, 861 F.2d 277, issued, we requested
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, 861 F.2d 277. 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 Hazardous Waste Treatment Industry." The legislative history thus cited by HWTC,
II. DIRECT ENVIRONMENTAL CLAIMS
The HWTC II, 861 F.2d 277, court did find standing for the organization 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, 861 F.2d at 281. 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. 861 F.2d at 285-86. 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 environmental organizational purpose. Id. The germaneness test requires "mere pertinence between litigation subject and organizational purpose." Id. 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, 861 F.2d 277, panel concluded that HWTC had standing to represent the consumer environmental interest there raised. HWTC II, 861 F.2d at 286.
According to affidavits attached to the supplemental briefs of petitioners, HWTC added two individuals as members on October 12, 1988. HWTC alleges direct environmental harm to these two individuals, Adolph Chilek and Larry Coogan, from the EPA actions challenged 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 members, HWTC seeks to bring the organization within HWTC II's consumer environmental injury holding.
Neither Chilek nor Coogan was a member when HWTC filed its petitions for review or at any other time during 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 extension 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 Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), an organization's standing turns on its members' standing to sue in their own right. Id. at 343, 97 S.Ct. at 2441. Although the interests Chilek and Coogan assert may rank with the consumer interest held sufficient for standing in HWTC II, 861 F.2d 277, 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 Opposition 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 important 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 deliberate congressional choice to impose statutory finality on agency orders.'" Id. (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, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982), is not precedent for the position petitioners 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. Id. at 653. The petitioner had inadvertently named the incorrect respondent, and the amendment we permitted simply corrected the petition to read as it should have and could have read within the statutory period. In these cases, in contrast, HWTC seeks to allege facts (the memberships of Chilek and Coogan) necessary for standing that it could not have alleged truthfully within the statutory period. Although a court "has the power to allow or require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing," Warth v. Seldin, 422 U.S. 490, 501-02, 95 S.Ct. 2197, 2206-07, 45 L.Ed.2d 343 (1975), accord Sierra Club v. Morton, 405 U.S. 727, 736 n. 8, 92 S.Ct. 1361, 1366 n. 8, 31 L.Ed.2d 636 (1972), a petitioner asserting organizational standing cannot succeed if the new affiliation it pleads came about only after the statutory time limit.
III. ENVIRONMENTAL CONSUMER CLAIMS
Lax EPA regulation of hazardous waste disposal in salt domes, HWTC maintains, creates a dilemma for some of its members, and both horns entail economic injury: "[M]embers that provide cleanup services or waste brokering for customers will either lose business if they do not use geologic repositories, or face greater potential liability for disposal in unprotective geologic repositories." Reply Brief of Petitioner at 4 (No. 88-1177). At oral argument HWTC vigorously asserted that members would be "forced" to utilize salt domes and become "consumers" of EPA-permitted "lax" disposal methods. In the event these allegedly unsafe repositories leak, HWTC continued, members using them would face strict, joint, and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9657 (1982).
This potential liability, however, insofar as it is incurred voluntarily, is not an injury that "`fairly can be traced to the challenged action,'" as required by Supreme Court decisions interpreting Article III of the Constitution. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (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."
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 of Chilek and Coogan cannot 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.
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 injuries to RCRA's purpose. If a general coincidence of RCRA's purposes 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, whenever 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, 861 F.2d at 287 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (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 II either.