ELR Citation: ELR 20712
No(s). s. 81-2025 et al (D.C. Cir. Jul 26, 1983)

The court rules that the Environmental Protection Agency's (EPA's) deferral of the obligation to submit Part B permit applications for incinerators and storage impoundments under the Resource Conservation and Recovery Act (RCRA) constituted a suspension of a regulation without notice and comment in violation of the Administrative Procedure Act (APA). Initially, the court rules that the case is not moot even though EPA has promulgated revised performance standards for impoundments and incinerators and requested submission of Part B permit applications from existing facilities covered by the new standards. Applying the "capable of repetition, yet evading review" test, the court notes that EPA concedes, and the record demonstrates, that the suspension of a regulation is too short in duration to be fully litigated prior to its cessation. In addition, there is a reasonable likelihood that plaintiff will be subjected to the alleged injury again if the case is not decided. While EPA is unlikely to defer the same regulations again, there is a reasonable possibility that it will defer other RCRA regulations. Plaintiff, a national environmental group with broad interests, is likely to be a party to any future dispute over such deferrals.

The court next rules that the district court, which had ordered EPA to timely promulgate performance standards under RCRA, 12 ELR 20101, correctly denied jurisdiction over the instant action. EPA's suspension of the performance standards and delay in the permit process did not violate the district court's order that the Agency promulgate regulations absent proof that the actions were a bad-faith effort to evade the court's order. Section 3010(b) of RCRA, which provides that regulations shall take effect six months after promulgation, does not create a non-discretionary duty to put the regulations into effect at that time. Rather, failure to adhere to the six-month deadline constitutes suspension of a regulation, jurisdiction over which lies in the courts of appeals.

The court next rules that failure to call in Part B permits for incinerators and surface impoundments constitutes suspension of a regulation, which was unlawful due to the absence of notice and an opportunity for comment. EPA's failure to call in the permit applications jeopardizes the rights of parties and therefore is a rule under the APA. The APA's "statement of policy" exemption, which must be narrowly construed, is not applicable because the effect of the decision is to exempt a large class from regulations required by law to protect the public.

A dissent would hold the case moot. It argues that the "capable of repetition, yet evading review" test applied by the majority is inapplicable in this and other cases where the defendant voluntarily abandons the allegedly illegal conduct. Such cases are moot where defendant shows that there is no reasonable possibility that the alleged violation will happen again, a burden that respondent met in this case.

Counsel for Petitioner
khristine L. Hall, David J. Lennett
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 387-3500

Counsel for Respondent
Lee R. Tyner, Donald W. Stever Jr., Jacques B. Gelin, Nancy S. Bryson, Patrick J. Cafferty Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5485

Counsel for Intervenors
Toni K. Allen, William R. Weissman, Stanley M. Spracker, Thomas H. Truitt
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036
(202) 826-1200

Before WILKEY and MIKVA, Circuit Judges, and FAIRCHILD,^* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.