WASHINGTON-The auto aftermarket is delighted with a Washington federal appeals court decision that said used motor oil does not have to be listed as a hazardous waste under the Resource Conservation and Recovery Act. Environmentalists who seek the listing, however, are expected to appeal.
The Natural Resources Defense Council, the Hazardous Waste Treatment Council and the Association of Petroleum Re-refiners had appealed a 1992 decision by the Environmental Protection Agency against listing used oil as hazardous.
In making its determination, the EPA considered 11 factors, emphasizing plausible possibilities for used oil mismanagement and other regulations which might control used oil.
The petitioners, however, argued the agency should have given more weight to nature, concentration, potential for migration, persistence and degradability of used oil.
The NRDC also argued that Congress-in the original 1984 RCRA law-left the EPA no choice except to list as hazardous any substance that exhibits hazardous characteristics.
In their May 27 decision, two judges of the U.S. Court of Appeals for the District of Columbia Circuit found no errors of judgment on the EPA's part.
Normally, when Congress states in law that an agency ``shall'' undertake a course of action, the agency has no discretion to decline, the judges said. But in the case of RCRA, Congress said the EPA shall list a waste as hazardous ``only upon determining'' that it meets the relevant criteria.
``(T)he regulation's inclusion of the modifier `only' drains the word `shall' of its compulsory connotation,'' the court said.
The judges also found the EPA properly considered all relevant factors in its decision on used oil. The petitioners never claimed the agency failed to consider any of the criteria, they said, and RCRA does not order the EPA to emphasize any factor over the others.
Judge Patricia Wald dissented from the majority. The EPA should have considered more closely its information on the current mismanagement of used oil, she said, and should be made to explain why it feels current used oil regulations are sufficient.
Representatives of tire dealers, retreaders and auto repairers were pleased by the appeals court decision. Having to dispose of used oil as hazardous waste would increase their expenses sharply, and also, they claim, would hamper efforts to recycle used oil.
``Perhaps this decision could help us with our negotiations on Superfund on the Senate side,'' said Roy E. Littlefield III, government relations director for the American Retreaders' Association.
The auto aftermarket is trying to get used oil exempted from Superfund, because used oil disposal at Superfund sites has pulled many garage owners into ruinous third-party liability lawsuits.
``Superfund is moving in the Senate, but without any industry amendments,'' Mr. Littlefield said. ``Perhaps this ruling will change that.''
Meanwhile, the petitioners in this case said they probably would appeal, based on Judge Wald's dissent. It is unclear, however, whether they will appeal to the full 11-member D.C. appeals court or to the U.S. Supreme Court.