     Case: 09-50274     Document: 00511104152          Page: 1    Date Filed: 05/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 7, 2010
                                       No. 09-50274
                                                                            Lyle W. Cayce
                                                                                 Clerk
TEXAS DISPOSAL SYSTEMS LANDFILL INC,

                                                   Plaintiff-Appellant

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; LAWRENCE
E. STARFIELD, Regional Administrator; LISA P. JACKSON, Administrator,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:06-CV-642


Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.

PER CURIAM:*
        Appellant Texas Disposal Systems Landfill, Inc. (“TDSL”) petitioned the
United States Environmental Protection Agency (“EPA”) to withdraw its
authorization of Texas’s hazardous waste program. TDSL alleged that Texas
was in violation of the federal Resource Conservation and Recovery Act
(“RCRA”). The EPA issued a Determination as to Whether Cause Exists to
Withdraw 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 09-50274

commence withdrawal proceedings. TDSL then filed suit in the district court
challenging the EPA’s Determination under the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701-706. The district court dismissed TDSL’s complaint for
lack of subject-matter jurisdiction, holding that the EPA’s Determination was a
nonreviewable discretionary agency action. TDSL now appeals. We review the
question of subject-matter jurisdiction de novo. Lundeen v. Mineta, 291 F.3d
300, 303 (5th Cir. 2002).
      Under the APA, an agency’s decision not to invoke an enforcement
mechanism 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
(1985) (“[A]n agency’s decision not to take enforcement action should be
presumed immune from judicial review under § 701(a)(2)”).          However, this
presumption against judicial review         may be rebutted if the statute
“circumscribes agency enforcement discretion, and has provided meaningful
standards for defining the limits of that discretion.” Heckler, 470 U.S. at 834-35,
105 S. Ct. at 1657.
      TDSL argues the EPA’s own regulations circumscribe the agency’s
discretion and provide the court with law to scrutinize the Determination. We
disagree. Neither the statute nor the regulations present standards by which
we can review the EPA’s decision not to commence withdrawal proceedings.
Under RCRA, whenever the EPA Administrator determines after public hearing
that a state is not in compliance, he shall notify the state. 42 U.S.C. § 6926(e).
If the state does not take corrective action within a reasonable time, then the
Administrator shall withdraw authorization. Id. Under EPA regulations, the
Administrator may order the commencement of withdrawal proceedings on his
own initiative or in response to a petition from an interested person.
40 C.F.R. § 271.22(a). The Administrator may conduct an informal investigation
of the allegation in the petition to determine whether cause exists to commence
withdrawal proceedings. Id. The regulations provide a non-exclusive list of

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                                 No. 09-50274

circumstances under which a state’s authorization may be withdrawn. Id. The
EPA Administrator must respond in writing to any petition to commence
withdrawal 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.
2003). Here the EPA did not find as such, and thus, the Determination is not
subject to review.
      Second, TDSL argues that the EPA’s Determination is reviewable because
it is not merely a refusal to enforce, but an informal adjudication. TDSL argues
that although the EPA declined to commence withdrawal proceedings, it “acted”
by providing interpretation and analysis of applicable law in the Determination.
We find this argument unpersuasive and contrary to the Supreme Court’s
holding that an action committed to agency discretion does not become
reviewable merely because the agency gives a reviewable reason for an otherwise
unreviewable action. Interstate Commerce Comm’n v. Brotherhood of Locomotive
Eng’rs, 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
commence withdraw proceedings is a discretionary, non-enforcement decision
that is unreviewable.
                                                                  AFFIRMED.




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