TX Disposal Systems Landfill v. EPA, et al

Filing 511104152

Case: 09-50274

Document: 00511104152

Page: 1

Date Filed: 05/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50274 May 7, 2010 Lyle W. Cayce Clerk T E X A S DISPOSAL SYSTEMS LANDFILL INC, Plaintiff-Appellant v. U N I T E D STATES ENVIRONMENTAL PROTECTION AGENCY; LAWRENCE E . STARFIELD, Regional Administrator; LISA P. JACKSON, Administrator, Defendants-Appellees

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:06-CV-642

Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit Ju dges. P E R CURIAM:* A p p e lla n t Texas Disposal Systems Landfill, Inc. ("TDSL") petitioned the U n it e d States Environmental Protection Agency ("EPA") to withdraw its a u t h o r iz a tio n of Texas's hazardous waste program. TDSL alleged that Texas w a s in violation of the federal Resource Conservation and Recovery Act ( "R C R A " ) . The EPA issued a Determination as to Whether Cause Exists to W it h d r a w the Texas RCRA Program ("Determination") and found no cause to
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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c o m m e n c e withdrawal proceedings. TDSL then filed suit in the district court c h a lle n g in g the EPA's Determination under the Administrative Procedure Act (" A P A " ), 5 U.S.C. §§ 701-706. The district court dismissed TDSL's complaint for la c k of subject-matter jurisdiction, holding that the EPA's Determination was a n o n r e v ie w a b le discretionary agency action. TDSL now appeals. We review the q u e s t io n of subject-matter jurisdiction de novo. Lundeen v. Mineta, 291 F.3d 3 0 0 , 303 (5th Cir. 2002). Under the APA, an agency's decision not to invoke an enforcement m e c h a n is m provided by statute is not ordinarily subject to judicial review. See 5 U.S.C. § 701(a)(2); Heckler v. Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649, 1656 (1 9 8 5 ) ("[A]n agency's decision not to take enforcement action should be p r e s u m e d immune from judicial review under § 701(a)(2)"). p r e s u m p t io n against judicial review However, this

may be rebutted if the statute

" c ir c u m s c r ib e s agency enforcement discretion, and has provided meaningful s t a n d a r d s for defining the limits of that discretion." Heckler, 470 U.S. at 834-35, 1 0 5 S. Ct. at 1657. TDSL argues the EPA's own regulations circumscribe the agency's d is c r e tio n and provide the court with law to scrutinize the Determination. We d i s a g r e e . Neither the statute nor the regulations present standards by which w e can review the EPA's decision not to commence withdrawal proceedings. U n d e r RCRA, whenever the EPA Administrator determines after public hearing t h a t a state is not in compliance, he shall notify the state. 42 U.S.C. § 6926(e). I f the state does not take corrective action within a reasonable time, then the A d m in is tr a t o r shall withdraw authorization. Id. Under EPA regulations, the A d m in is tr a t o r may order the commencement of withdrawal proceedings on his o w n initiative or in response to a petition from an interested person. 4 0 C.F.R. § 271.22(a). The Administrator may conduct an informal investigation o f the allegation in the petition to determine whether cause exists to commence w ith d r a w a l proceedings. Id. The regulations provide a non-exclusive list of 2

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c ir c u m s t a n ce s under which a state's authorization may be withdrawn. Id. The E P A Administrator must respond in writing to any petition to commence w it h d r a w a l proceedings. 40 C.F.R. § 271.23(b)(1). Thus, the EPA is only limited in that it must withdraw authorization after it has determined that the state is not in compliance. See Pub. Citizen, Inc. v. EPA, 343 F.3d 449, 452 (5th Cir. 2 0 0 3 ). Here the EPA did not find as such, and thus, the Determination is not s u b je c t to review. S e c o n d , TDSL argues that the EPA's Determination is reviewable because it is not merely a refusal to enforce, but an informal adjudication. TDSL argues t h a t although the EPA declined to commence withdrawal proceedings, it "acted" b y providing interpretation and analysis of applicable law in the Determination. W e find this argument unpersuasive and contrary to the Supreme Court's h o ld in g that an action committed to agency discretion does not become r e v ie w a b l e merely because the agency gives a reviewable reason for an otherwise u n r e v ie w a b le action. Interstate Commerce Comm'n v. Brotherhood of Locomotive E n g 'r s , 482 U.S. 270, 283, 107 S. Ct. 2360, 2368 (1987). We agree with the district court's holding that the EPA's decision not to c o m m e n c e withdraw proceedings is a discretionary, non-enforcement decision th a t is unreviewable. AFFIRMED.

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