Law School Case Brief
Shell Oil Co. v. EPA - 292 U.S. App. D.C. 332, 950 F.2d 741 (1991)
In issuing regulations, the Environmental Protection Agency must observe the notice-and-comment procedures of the Administrative Procedure Act, 5 U.S.C.S. § 553(b) and the public-participation directive of Resource Conservation and Recovery Act of 1976, 42 U.S.C.S. § 6974(b). The relationship between the proposed regulation and the final rule determines the adequacy of notice. A difference between the two does not invalidate the notice so long as the final rule is a logical outgrowth of the one proposed. If the deviation from the proposal is too sharp, the affected parties do not have adequate notice and opportunity for comment.
In these consolidated cases, Shell Oil Company et al. challenge both the substance of several rules promulgated by the Environmental Protection Agency (EPA) pursuant to the Resource Conservation and Recovery Act of 1976 (RCRA) and its compliance with the Administrative Procedure Act's rulemaking requirements. Consolidated petitioners challenge two rules that categorize substances as hazardous wastes until a contrary showing has been made: the "mixture" rule, which classifies as a hazardous waste any mixture of a "listed" hazardous waste with any other solid waste, and the "derived-from" rule, which so classifies any residue derived from the treatment of hazardous waste. They argue that the EPA failed to provide adequate notice and opportunity for comment when it promulgated the mixture and derived-from rules, and that the rules exceed the EPA's statutory authority. Three petitioners present separate challenges to other rules included in the same rulemaking. In the first, the American Mining Congress asserts that the EPA exceeded its statutory authority and failed to provide notice and opportunity to comment in defining "treatment" to include processes designed to recover valuable materials from the recycling of solid wastes. Second, the American Petroleum Institute attacks the EPA's requirement of "leachate monitoring" at land treatment facilities for failure to provide notice and opportunity to comment. (In land treatment, waste is placed upon land or incorporated into the surface soil. Leachate monitoring tests water that has passed through the soil to assure that hazardous wastes or their constituents are not migrating through it.) Finally, the Environmental Defense Fund challenges the EPA's "permit-shield" provision, a regulation that, with some exceptions, exempts a facility from enforcement proceedings for statutory violations if it is in compliance with its permit conditions.
Did EPA fail to provide adequate notice and opportunity for comment when it promulgated the mixture and derived-from rules?
The appellate court held that (1) because the EPA had not provided adequate notice and opportunity for comment, the mixture and derive-from rules had to be set aside and remanded to the EPA, (2) the EPA's regulation of resource recovery from hazardous wastes was permissible under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.S. §§ 6901-6987, (3) the EPA did not adequately forewarn parties that leachate monitoring might be imposed, (4) there were no Congressional restraints on the EPA's exercise of enforcement discretion, (5) the EPA's decision not to prosecute or enforce, whether through civil or criminal process, was a decision generally committed to the EPA's absolute discretion,(6) the permit-shield rule was a reasonable, self-imposed constraint on the EPA's enforcement discretion.
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