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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2003 Decided April 11, 2003
Nos. 99-1409 & 99-1414
ATLANTIC STATES LEGAL FOUNDATION, INC., ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY AND
CHRISTINE TODD WHITMAN, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
UTILITY SOLID WASTE ACTIVITIES GROUP, ET AL.,
INTERVENORS
On Petitions for Review of an Order of the
Environmental Protection Agency
Paul J. Hirsch argued the cause and filed the briefs for
petitioners.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Norman L. Rave, Jr., Attorney, U.S. Department of Jus-
tice, argued the cause and filed the briefs for respondents.
Douglas H. Green was on the briefs for intervenors. Ste-
ven J. Groseclose entered an appearance.
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: EPA promulgated regulations
allowing electric, telephone, and natural gas utilities in New
York State to accumulate hazardous waste at utility-owned
central collection facilities without obtaining a permit. Peti-
tioners are three environmental organizations with members
in New York. They claim the regulations are inconsistent
with the permit requirement in the Resource Conservation
and Recovery Act, that the regulations violate the public’s
right to notice, and are arbitrary, capricious, an abuse of
agency discretion, and contrary to law.
EPA issued the regulations as part of its Project XL, a
program for replacing or modifying regulations in order to
produce greater environmental benefits at lower costs. See
generally Regulatory Reinvention (XL) Pilot Projects, 62
Fed. Reg. 19,872 (Apr. 23, 1997). The New York program is
in the nature of a pilot project. EPA’s regulations will not
take effect unless and until the New York State Department
of Environmental Conservation (‘‘NYSDEC’’) adopts them
after public notice and comment. Participation by utilities in
the State is optional.
The regulations are directed at the handling of hazardous
waste generated at ‘‘remote sites,’’ which are defined as sites
in New York within a utility’s right-of-way that are not
permanently staffed. Remote sites include, in the case of
electric and telephone companies, manholes and transformer
vaults; when serviced, sediment often must be removed; the
sediment may exhibit toxicity characteristics for lead and thus
be classified as a hazardous waste. Under present regula-
tions, each remote location is considered a separate generator
location, requiring a separate hazardous waste identification
3
number and separate reports. The waste is eventually sent
to treatment, storage, or disposal facilities, each of which has
an EPA-issued permit. Before shipping hazardous waste for
treatment or disposal, some utilities—in order to prevent
accidental releases—would prefer to consolidate wastes at
secure central collection facilities along the same right-of-way
as the remote locations. But current regulations either do
not allow consolidation at an off-site location (a site that is not
geographically contiguous to the property on which the waste
is generated) or would impose burdensome recordkeeping and
reporting requirements. EPA maintains that the Project XL
regulations would reduce the risk posed by storage of waste
at remote sites and would reduce pollution and economic costs
associated with transporting many small loads of waste for
treatment, storage, or disposal. Although the generally ap-
plicable rules require permits for storage facilities, see 42
U.S.C. § 6925, no permits would be required for the utility-
owned collection sites under the Project XL regulations.
Before these regulations can have any effect in New York,
several steps must occur. First, after publication in the State
Register and a notice-and-comment period, the State agency
will have to promulgate the regulations in final form, or
modify them in response to comments. (In light of comments
the State agency may, of course, decide not to implement the
regulations.*) If the State agency does promulgate the regu-
lations, utilities will have to decide whether to participate in
the program. Those that do will have to notify local commu-
nities and governments and all parties who commented on the
proposed rule before EPA (including the petitioners here).
40 C.F.R. § 262.90(c)(2). The notice must contain, among
other things, a description of the project and the intended use
of the central collection facility, the name and address of the
facility, the intended duration of the project, contact persons,
and notification of the closing date of the comment period.
* Before a final state rule is implemented, the NYSDEC may
issue a temporary ‘‘Enforcement Directive,’’ but this also would
require publication in the State Register, a public comment period,
and consideration of the comments.
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Id. § 262.90(c)(3). Public notice under the regulations con-
sists of publication in a newspaper and two of the following:
radio announcements, mailings to those within five miles of
the site, community meetings, presentations to the local com-
munity board, placement in the nearest public library, and
publication on the utility’s website. Id. § 262.90(c)(2). The
utility must compile all of the comments and questions and
respond to them. Id. § 262.90(c)(5). It then must notify the
appropriate official within the NYSDEC, who will respond to
comments received and choose to accept, reject, or place
conditions on the specific proposal. See id. § 262.92(e)(3);
see also Project XL Rulemaking for New York State Public
Utilities, 64 Fed. Reg. 37,624, 37,625 (July 12, 1999) (‘‘Al-
though today’s rule references ‘EPA,’ ‘NYSDEC’ will be
substituted for ‘EPA’ when the State adopts these require-
ments as State law.’’).
Petitioners argue that the utility-owned collection facilities
will be storage facilities under 42 U.S.C. § 6925, and that the
owners therefore must obtain permits before building them.
Petitioners also complain that the regulations’ public notice
requirements for building a central collection facility differ
from what would be required for a storage facility. The
regulations, they say, set up ‘‘notification TTT designed to
fail,’’ and thus must be vacated as inconsistent with the
statutory framework. Petitioners also contend that the regu-
lations are arbitrary and capricious because they are inconsis-
tent with other EPA regulations, and are an abuse of discre-
tion because they ignore the requirements of Executive Order
No. 12,898, regarding environmental justice.
Although no party has raised the subject, we view the
questions presented in the petitions as not ripe for judicial
review. See Utility Air Regulatory Group v. EPA, 320 F.3d
272, 277 (D.C. Cir. 2003). Federal courts are limited by
Article III of the Constitution to deciding ‘‘Cases’’ and ‘‘Con-
troversies,’’ and by prudential considerations, which the court
may raise sua sponte. Reno v. Catholic Soc. Servs., Inc., 509
U.S. 43, 57 n.18 (1993). Issues that are ‘‘ill-defined,’’ United
Pub. Workers v. Mitchell, 330 U.S. 75, 90 (1947), or otherwise
unfit for judicial decision at the moment, and those issues for
5
which no substantial hardship would result from postponing
review are not ripe. See Abbott Labs. v. Gardner, 387 U.S.
136, 149 (1967); Catholic Soc. Servs., Inc., 509 U.S. at 57–58;
Clean Air Implementation Project v. EPA, 150 F.3d 1200,
1204 (D.C. Cir. 1998); Ass’n of Am. Railroads v. Surface
Transp. Bd., 146 F.3d 942, 946 (D.C. Cir. 1998). A ‘‘regula-
tion is not ordinarily considered the type of agency action
‘ripe’ for judicial review under the APA until the scope of the
controversy has been reduced to more manageable propor-
tions, and its factual components fleshed out, by some con-
crete action applying the regulation to the claimant’s situation
in a fashion that harms or threatens to harm him.’’ Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990).
Among other things, the fitness of an issue for judicial
decision depends on whether it is ‘‘purely legal, whether
consideration of the issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.’’
Clean Air Implementation Project, 150 F.3d at 1204 (internal
quotation marks omitted). Claims that an agency’s action is
arbitrary and capricious or contrary to law present purely
legal issues. See Fox Television Stations, Inc. v. FCC, 280
F.3d 1027, 1039 (D.C. Cir. 2002). But even purely legal
issues may be unfit for review. See Aulenback, Inc. v. Fed.
Highway Admin., 103 F.3d 156, 167 (D.C. Cir. 1997). So
here. No one can say with certainty that the New York
authorities will adopt the Project XL regulations as they are
now written or will modify them. Even if New York does
adopt the regulations en masse, we still would not know
which utilities will opt into the program or where they will
locate their central collection facilities. Yet a ‘‘claim is not
ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all.’’ Texas v. United States, 523 U.S. 296, 300 (1998) (inter-
nal quotation marks omitted).
When and if the program is implemented it will be easy
enough to determine whether the notice requirements in the
regulations adequately apprised interested persons. Then
too there will be evidence—none of which we have at the
moment—regarding the amount of waste expected to be
6
stored at a particular collection facility, the frequency of
deliveries of waste to the facility, and other details that may
assist in deciding whether the facility operates as a storage
facility under 42 U.S.C. § 6925(a), and thus must obtain a
permit, as petitioners argue. It will also become apparent
whether petitioners have standing because of their proximity
to the site of one of these facilities, a point of dispute in this
litigation. All of these developments are likely to assist the
court in deciding the case. In short, we have ‘‘the classic
institutional reason to postpone review: we need to wait for ‘a
rule to be applied [to see] what its effect will be.’ ’’ Louisi-
ana Envtl. Action Network v. Browner, 87 F.3d 1379, 1385
(D.C. Cir. 1996) (quoting Diamond Shamrock Corp. v. Costle,
580 F.2d 670, 674 (D.C. Cir. 1978)).
Another factor weighing against deciding the case at this
time is the consideration of finality. EPA has finished with
the regulations. But, as we have said, there is still the
possibility that New York will modify the regulations after
public notice and comment. This may require EPA to act
again to approve any significant changes. Absent that,
EPA’s role is limited and NYSDEC will have the primary
enforcement responsibility. Intervenors—the utilities’ trade
associations and Consolidated Edison—suggest that there is
no final agency action in this case, which would be a separate
reason for dismissing the appeal. The lack of final agency
action depends on ‘‘whether the agency’s position is definitive
and whether it has a direct and immediate TTT effect on the
TTT parties.’’ Fourth Branch Assocs. (Mechanicville) v.
FERC, 253 F.3d 741, 746 (D.C. Cir. 2001) (internal quotation
marks omitted) (first alteration in original). Rather than
pronouncing on the finality of EPA’s action, it is enough to
point out that before the regulations have any effect, on the
utilities or on the petitioners, New York must act and in
acting might alter EPA’s product.
As to the hardship on petitioners from delaying judicial
review, petitioners cannot show that they will suffer any
injury in the interim. They are ‘‘not required to engage in, or
to refrain from, any conduct.’’ Texas, 523 U.S. at 301. No
central collection facility is operating or even proposed. With
7
all of the further steps that must take place before a utility in
New York State begins to use a central collection facility,
there is no current, direct effect on the health or welfare of
petitioners’ members. Id. Petitioners may protect all of
their rights and claims by returning to court when the
controversy ripens. (The need to bring fresh litigation is not
a reason for finding an issue ripe. See, e.g., AMFAC Resorts,
L.L.C. v. United States Dep’t of Interior, 282 F.3d 818, 838
(D.C. Cir.), cert. granted sub nom. Nat’l Park Hosp. Ass’n v.
Dep’t of Interior, 123 S. Ct. 549 (2002).) We are not con-
cerned that EPA’s allegedly inadequate notice rules will allow
a facility to be built without giving petitioners an opportunity
for judicial review. As commenters on the EPA’s rules,
petitioners must be notified of proposed facilities.
We recognize that 42 U.S.C. § 6976(a)(1) requires a peti-
tion for review to be filed within ninety days of the promul-
gation of a final regulation by EPA. But we have previously
held that the time limit does not begin to run until the claim
ripens. See, e.g., Louisiana Envtl. Action Network, 87 F.3d
at 1385; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 149
(D.C. Cir. 1982). Therefore, as long as petitioners bring
another petition for review within ninety days of the time a
utility provides notice of a site it intends to use as a central
collection facility under these rules, the petition will be time-
ly.
For the reasons stated, the petitions for judicial review are
dismissed.
So ordered.