Challenge Dismissed

A FEDERAL APPEALS COURT has dismissed an environmental group's challenge of the Washington-based U.S. Environmental Protection Agency's (EPA) final rule allowing landfill operators to test alternate operational technologies such as bioreactors and phytocovers.

In November, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled that the GrassRoots Recycling Network (GRRN), Madison, Wis., does not have the legal standing to seek a review of the EPA's Research, Development and Demonstration (RD&D) rule for landfills. In the opinion that he wrote on behalf of the three-judge panel, Chief Judge Douglas Ginsburg says that GRRN, whose members consist of citizen activists and recycling professionals, had not demonstrated that the rule has caused or is about to cause any of the organization's members harm. Therefore, GRRN “does not meet the minimum constitutional requirements for associational standing” needed to bring a challenge to the rule, Ginsburg says.

Because the panel determined that GRRN did not have the legal standing to bring the challenge, the panel did not rule on the issue raised by the organization: whether the EPA had the authority to issue the rule under the Resource Conservation and Recovery Act. In its petition for review, GRRN said that the final rule “increased the exposure of petitioner's members to air and drinking water pollution associated with a variety of adverse health, welfare and property effects.”

In 2004, the National Solid Wastes Management Association (NSWMA), Washington, and the Solid Waste Association of North America (SWANA), Silver Spring, Md., filed a joint amicus brief in the case supporting the RD&D rule. “NSWMA is very pleased by the court's decision,” says David Biderman, general counsel for NSWMA. “We hope that landfill owners will take advantage of the regulatory flexibility offered under the EPA RD&D rules and continue to develop innovative and environmental protective landfill operations.”

“Standing is like a password on your computer,” says Barry Shanoff, general counsel for SWANA. “The wrong input and you can't get into the system. It's too bad the appeal process isn't set up to weed out at an earlier stage groups and organizations who can't substantiate a legally recognizable injury.”

The EPA, which issued the RD&D rule in March 2004, says it is intended to promote innovation in landfill operations. The rule allows state directors of federally approved municipal solid waste landfill permit programs to issue RD&D permits to landfills to deviate from Subtitle D requirements for run-on control systems, liquids restrictions and final cover. However, the applicants must demonstrate that their plans will not increase the risks to human health and the environment.