UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


LA ENV ACTN NTWRK

v.

EPA


98-1082a

D.C. Cir. 1999


*	*	*


Williams, Circuit Judge: Section 3004(m) of the Resource  Conservation
and Recovery Act ("RCRA"), 42 U.S.C.  s 6924(m), requires the
Environmental Protection Agency to  promulgate regulations governing
what treatment certain  kinds of hazardous waste must undergo before
it may be  disposed of in a landfill. EPA found that waste already in
a  landfill presented a special problem. The agency's authority  to
compel high-quality disposition of such waste is not as  great as it
is for as yet undisposed of waste. As a result, too- strict treatment
regulations could in some circumstances dis- courage excavation--and
thus prevent any treatment at all.  Because of its concern for this,
EPA promulgated a regula- tion under s 3004(m) allowing variances from
generally appli- cable treatment standards if "treatment to the
specified level  or by the specified method is environmentally
inappropriate  because it would likely discourage aggressive
remediation."  62 Fed. Reg. 64,509/3 (1997). Petitioners Louisiana
Environ- mental Action Network ("LEAN") and Environmental Tech- nology
Council ("ETC") petitioned for review of this new  variance rule; we
deny the petition to the extent it is ripe.


* * *


Standing first. Petitioners defend only the standing of  LEAN; despite
its participation in oral argument and evident  interest in the case,
ETC (a waste treatment company trade  association formerly known as
the Hazardous Waste Treat-


ment Council) appears to lack prudential standing. See, e.g., 
Hazardous Waste Treatment Council v. Thomas, 885 F.2d  918, 925 (D.C.
Cir. 1989) ("HWTC IV") (because of concern  that "judicial
intervention may defeat statutory goals if it  proceeds at the behest
of interests that coincide only acciden- tally with those goals,"
firms selling environmental services  lack standing to challenge RCRA
regulations as insufficiently  stringent); Hazardous Waste Treatment
Council v. EPA  ("HWTC II"), 861 F.2d 277, 283 (D.C. Cir. 1988)
(same).  LEAN, by contrast, evidently an organization of environmen-
tally concerned citizens and groups, clearly meets prudential 
standing requirements. It rests its claim of "injury in fact" 
(essential for constitutional standing) on the interests of at  least
three members who live near the Carlyss landfill in  Louisiana. This
is the site at which most waste from that  state would be "land
disposed" if excavated and treated.  Under LEAN's theory, "lower
quality" (less treated) wastes  will be deposited in Carlyss; the rule
in literal terms permits  that effect, and holders of hazardous waste
have every incen- tive to take advantage of it. Under EPA's theory the
new  rule will increase the quantity of waste disposed of at Carlyss, 
for it adopted the rule lest holders of hazardous waste who  were free
to choose would forego costly excavation and redis- posal (with the
likely destination, in Louisiana, of Carlyss) in  favor of thriftier
in-place solutions. Either way, application  of the variance rule will
lower the average quality of waste  deposited at Carlyss, and under
EPA's view its application  will also increase the quantity of such
waste. Thus, to the  extent that there is any residual risk in the
lower-quality  wastes, application of the rule will increase the risk


While our partially dissenting colleague doubts that such  harm is
sufficiently imminent, we do not. Petitioners have  noted that in the
state of Louisiana there are over 100  inactive or abandoned hazardous
waste sites for which clean- up has already been found necessary, as
well as about thirty  RCRA facilities designated "high priority." It
is therefore all  but certain that remediation activities will
continue to occur  apace. Even if the variance-to-remediation ratio is
fairly low, 


the amount of such activities creates a very "substantial 
probability" that some variances will be granted, increasing  risk to
LEAN members near the Carlyss site. See Florida  Audubon Society v.
Bentsen, 94 F.3d 658, 666 (D.C. Cir.  1996).


What is novel here is that LEAN must surely have (indeed,  counsel at
oral argument confirmed that it did have) other  members who live
nearer to the landfills in which waste  currently resides--waste that
would, absent the waiver rule's  preference for excavation, treatment
and redisposal, remain  in place and continue to entail some risk for
these LEAN  members. Indeed, as the waiver rule is aimed at "cases 
where imposition of the otherwise applicable treatment stan- dard
could result in a net environmental detriment by dis- couraging
aggressive remediation," 62 Fed. Reg. 64,505/3  (1997) (emphasis
added), these other members might well be  harmed more by continuation
of the status quo than those  living near the Carlyss landfill are


We have previously held that such a conflict of interest  within an
organization does not deprive the organization of  representative
standing if no internal procedural violation has  been shown. National
Maritime Union v. Commander,  Military Sealift Command, 824 F.2d 1228,
1232-34 (D.C. Cir.  1987). But see Retired Chicago Police Ass'n v.
City of  Chicago, 76 F.3d 856, 864-65 (7th Cir. 1996) (as burden to 
show standing is on plaintiff, plaintiff organization must dem-
onstrate proper authorization of litigation if profound conflict  of
interest is present). Conceivably one might distinguish  National
Maritime Union on the ground that here we have  an entity on the
scene, ETC, with very real economic inter- ests but no standing. The
risk of some possible manipulation 




__________

n 1 LEAN claims that it does not oppose EPA's decision to grant 
variances on the ground that the baseline requirement is so strin-
gent as to discourage aggressive remediation (e.g. excavation). But 
it does object to EPA's consideration of this excessive-stringency 
possibility in actually determining the content of a variance. Thus 
the outcome it seeks would likely be very similar to the status quo 
ante rule, i.e., standards that inhibit remediation.


will occur even to the most naive. Nevertheless, because of  the
line-drawing difficulties that any such distinction would  generate,
we believe that in the absence of any overt signal  that LEAN's
decision to challenge the rule is the product of  ETC's influence,
National Maritime Union should control.


As LEAN's primary purpose is likely to protect the overall  health of
Louisiana's environment, one might question the  organization's
standing on germaneness grounds. See Hunt  v. Washington State Apple
Advertising Comm'n, 432 U.S.  333, 343 (1977) ("the interests [the
organization] seeks to  protect [must be] germane to the
organization's purpose").  But by LEAN's own description, "LEAN's
purpose is to  protect Louisiana's air, land, water, and other natural
re- sources, and to protect LEAN's members and other citizens of  the
state, from threats posed by pollution." Petitioners'  Certificate as
to Parties (emphasis added). Indeed, we see no  reason to believe that
LEAN's purposes are exclusively  other-regarding. All non-trivial
policy issues entail trade- offs, and LEAN may legitimately object to
decisions that  injure its members' environmental interests, no matter
what  the overall calculus. That being the case, National Maritime 
Union controls this issue as well. Organizations, like people,  may
face the problem of "two souls in one breast," but--as  long as they
do not violate internal procedures--they are free  to choose for
themselves which purpose to pursue on any  specific occasion. That
LEAN may act against its other- regarding purposes is no more a bar to
standing than that it  acts against the self-interest of some of its


* * *


Section 3004(m)(1) provides, in relevant part, that


the Administrator shall ... promulgate regulations spec- ifying those
levels or methods of treatment, if any, which  substantially diminish
the toxicity of the waste or sub- stantially reduce the likelihood of
migration of hazardous  constituents from the waste so that short-term
and long- term threats to human health and the environment are 
minimized.


42 U.S.C. s 6924(m)(1).


In the preamble to its new variance rule, EPA stated that  in
considering whether a particular variance complies with  this
language, it may consider "the risks posed by the contin- uation of
any existing land disposal of the untreated waste,  that is, the risks
posed by leaving previously land disposed  waste in place." 62 Fed.
Reg. 64,506/2 (1997). Further, in an  apparent illustration of
specific factors it might look to in  selecting the right level for a
specific variance, EPA men- tioned "disposal of treatment residues in
a subtitle C land- fill"--that is, a landfill subject to the hazardous
waste dispos- al controls of RCRA s 3004 et seq. Id. LEAN argues that 
both considerations are improper under the statute.


Whether EPA's words qualify as a "regulation" under  RCRA's judicial
review provision, 42 U.S.C. s 6976(a)(1) (pro- viding review within 90
days of action promulgating "regula- tion"), depends on three factors:
EPA's own characterization,  whether it published the language in the
Federal Register or  the Code of Federal Regulations, and whether the
action has  binding effect on either private parties or EPA. See
Florida  Power & Light Co. v. EPA, 145 F.3d 1414, 1418 (D.C. Cir. 
1998). (The first two factors are, of course, the best indica- tion of
the third.) The EPA argues that this is a reviewable  "regulation" and
has published the contested material in the  Federal Register, and we
see nothing in the actual language  that would indicate that it
intended something less than an  official, binding interpretation of


LEAN's challenge must also satisfy ripeness requirements.  But as
Congress has provided immediate review of RCRA  regulations, see 42
U.S.C. s 6976(a)(1), we need only find that  the issue is fit for
judicial review. See George E. Warren  Corp. v. EPA, 159 F.3d 616, 622
(D.C. Cir. 1998) ("Where the  [fitness] prong of the Abbott
Laboratories ripeness test is met  and Congress has emphatically
declared a preference for  immediate review ... no purpose is served
by proceeding to  the [hardship] prong."). Fitness for judicial review
is based  on "whether the issue is purely legal, whether consideration
 of the issue would benefit from a more concrete setting, and 


whether the agency's action is sufficiently final." Id. at 621.  With
respect to these first questions--whether the statute  entirely bars
EPA from consideration of certain factors--all  three criteria
indicate fitness for review and, accordingly,  ripeness.


On the merits: in the words of Chevron, "the statute is  silent or
ambiguous with respect to the specific issue" of  whether the
"threats" to be "minimized" under s 3004(m)  may include the threat
posed by leaving waste where it  currently is. Chevron v. NRDC, 467
U.S. 837, 843 (1984).  LEAN's argument here appears to be that because
s 3004(m)  only regulates waste to be disposed of in new landfill
sites (a  point that is not disputed), it follows that the only
"threats" to  be considered and "minimized" are threats from waste in
such  a new site. This appears a complete non sequitur. It seems  far
more natural to suppose that in a statute enacted to  protect human
health and the environment, Congress intend- ed to direct EPA to keep
its eye on this underlying goal,  rather than to use purely artificial
benchmarks for inquiring  whether threats are truly "minimized." Not
only does the  statute not resolve the specific issue contrary to
EPA's  resolution, but the latter is plainly reasonable in light of
the  statutory language and structure.


We also find that Congress has not barred EPA, in its  determination
whether the "minimize[ ]" language is satisfied,  from considering the
protective effect of eventual disposal in  a subtitle C landfill.
LEAN's argument to the contrary  depends on our decision in American
Petroleum Institute v.  EPA, 906 F.2d 729, 735-36 (D.C. Cir. 1990)
("API"). LEAN  evidently reads this case to foreclose EPA from
considering  in any way the protective characteristics of the waste's
place  of ultimate deposit. But API held only that, because land 
disposal pursuant to s 3004(m)(2) is dependent upon compli- ance with
the s 3004(m)(1) treatment requirement, land dis- posal itself cannot
constitute the "treatment" required to  satisfy s 3004(m)(1). Id.
Thus, API makes clear that in  measuring whether the "treatment"
required will "substan- tially diminish" toxicity or "substantially
reduce" the likeli- hood of migration, EPA must look to the


treatment. EPA does not dispute this, even in the variance  context.
But as to whether EPA may look more broadly in  determining if the
overall effect is to "minimize[ ]" threats,  API says nothing.
Although LEAN points to another, later  rulemaking in which EPA
appears to have read the mandate  of API more broadly, see 63 Fed.
Reg. 28,607/3 (1998), a  possible later error is no basis for us to
upset the present  rule.


Nor do we find EPA's interpretation here unreasonable in  light of the
statute's language and structure. It would be  senseless to make EPA,
in attempting to protect human  health and the environment, ignore the
eventual disposal  site's likely effect: such a restriction would
deprive EPA of  any basis from which to estimate the actual risk
likely to be  imposed on the outside world.


We thus reject these challenges on the merits.


* * *


LEAN appears to make two additional challenges. It first  claims that
something in the present rule violates the "sub- stantially diminish
... substantially reduce" language of  s 3004(m)(1). But, apart from
LEAN's claims as to what the  statute categorically excludes from
consideration in assessing  the "minimiz[ation]" required by the
section, the issue of  whether a particular treatment brings about
substantial dimi- nution or reduction--although concededly a
restriction on  whatever treatment is approved--cannot be decided
without  particular challenged treatments before us. Accordingly, we 
find the issue unfit for judicial review at this time.


LEAN next argues that EPA's risk calculations will be  unfairly
compromised by its improper refusal to exercise its  power to force
excavations of hazardous waste. But when  prompted at oral argument,
counsel for petitioners was un- able to point to any language
indicating EPA's intention to do  such a thing, and counsel for EPA
denied any such intent.  We see no ripe case or controversy here.


We dismiss these unripe challenges.


* * *


We find no reason to disturb EPA's decision. We dismiss  the petition
in part and deny the remainder.


So ordered.


Sentelle, Circuit Judge, concurring in part and dissent- ing in part:
I wholly concur in the portion of my colleagues'  opinion and judgment
that dismisses the diminution or reduc- tion and risk calculation
claims of Louisiana Environmental  Action Network as unripe. As to the
portion of the opinion  denying the remainder of the petition, I do
not disagree with  their view of the merits; I simply do not think we
can  properly reach the merits at all. I am not at all convinced  that
petitioners have carried their burden of establishing that  they have
standing to challenge the RCRA regulations.


In order to satisfy the "essential and unchanging" standing  predicate
to any exercise of the jurisdiction of an Article III  court, a
litigant must establish the "irreducible constitutional  minimum of
standing," by demonstrating that it has suffered  a "concrete and
particularized" injury that is (1) "actual or  imminent," Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560  (1992), (2) caused by or
fairly traceable to an action that the  litigant challenges in the
litigation, see Allen v. Wright, 468  U.S. 737, 752 (1984), and (3)
redressable by the court in the  action, see Simon v. Eastern Ky.
Welfare Rights Org., 426  U.S. 38 (1976). We require a plaintiff or
petitioner to show  that the injury is current, or "at least imminent"
in order to  avoid the possibility that the court may be
"unconstitutionally  render[ing] an advisory opinion by 'deciding a
case in which  no injury would have occurred at all.' " Florida
Audubon  Soc'y v. Bensen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting 
Defenders of Wildlife, 504 U.S. at 564 n.2). A speculation of  harm is
not sufficient to demonstrate the concrete, particular- ized injury
necessary for constitutional standing. Simon, 426  U.S. at 44
("[U]nadorned speculation will not suffice to invoke  the federal


That the current injury is speculative is demonstrated by  the very
terms in which it is expressed. As the majority  describes the injury,
the most that LEAN has demonstrated  is that three of its members live
near a site "at which most  waste from [Louisiana] would be 'land
disposed' if excavated  and treated." Maj. op. at 3. The majority
relies solely on  the fact that there are approximately 100 sites in
Louisiana  for which cleanup has been found necessary as grounds for


concluding that it is "all but certain that remediation activities 
will continue to occur apace." Id. From this conclusion, the  majority
opines that "[e]ven if the variance-to-remediation  ratio is fairly
low, the amount of such activities creates a very  'substantial
probability' that some variances will be granted."  Id. at 3-4.
However, neither the majority, nor anyone else,  can say whether the
variance-to-remediation level will be  high, low, or even zero. The
majority correctly concludes  that the record evidence indicates that
there is a "substantial  probability" that remediation will occur in
the future at sites  in Louisiana. However, it improperly leaps from
this well- supported proposition to the wholly unsupported conclusion 
that, as part of any future remediation at sites in Louisiana,  "some
variances will be granted," adversely affecting the  interests of the
named LEAN members. Assent to this  latter proposition requires a
grand leap of faith since we can  only speculate concerning whether
EPA will grant variances  for sites in Louisiana. Indeed, there is no
record evidence  indicating that any of the sites referenced by the
majority  would be suitable candidates for variances under EPA's new 
program, since EPA has not yet acted to grant or deny a  single
variance. For these reasons, I can only conclude that  petitioners'
alleged injury is speculative at best.


The purely speculative variety of failed standing occurs  most
frequently where, as here, petitioners are attacking an  action of an
agency or other entity which they contend is  likely to encourage some
third party not before the court to  take some action which would be
detrimental to plaintiffs and  might possibly occur if that third
party acts upon the encour- agement. The Supreme Court has discussed
this proposition  in a number of decisions, including Warth v. Seldin,
422 U.S.  490 (1975). In Warth, the Court opined that in litigation 
challenging the governmental regulation of one party on the  basis
that it causes harm to a third party, "the indirectness of  the injury
does not necessarily deprive the person harmed of  standing to
vindicate his rights. But, it may make it substan- tially more
difficult to meet the minimum requirement of  article III: to
establish that, in fact, the asserted injury was  the consequence of
the defendants' actions or that prospective 


relief will remove the harm." Id. at 505. All the more  difficult
where, as here, it is speculative that the harm will  occur at all. In
Florida Audubon Society v. Bensen, 94 F.3d  658 (D.C. Cir. 1996), we
held that plaintiffs had not demon- strated standing where they had
not shown that it was  substantially probable that the promulgation of
the alleged  incentive toward the third party would cause the
speculated  injury. Here there is no such showing and no standing.


In short, I would hold that plaintiffs have not demonstrated  that they
meet the constitutional minimum of a concrete,  particularized injury
or that any such injury is caused by the  acts of a defendant of which
they complain. Instead of  denying the petition, I would dismiss it.