State of Ala. v. U.S. E.P.A., s. 88-7677
| Decision Date | 18 April 1989 |
| Docket Number | 89-7024,Nos. 88-7677,s. 88-7677 |
| Citation | 871 F.2d 1548 |
| Parties | , 19 Envtl. L. Rep. 20,956 STATE OF ALABAMA, etc., et al., Plaintiffs-Appellees, Cross-Appellants, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Lee M. Thomas, Defendants-Appellants, State of Texas; and Chemical Waste Management, Inc., Intervenors-Appellants, Cross-Appellees. STATE OF ALABAMA, ex rel. Don SIEGELMAN, Attorney General, and Guy Hunt, Don Siegelman and Leigh Peques, individually as citizens of the State of Alabama, Plaintiffs-Appellees, Cross-Appellants, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator of the United States Environmental Protection Agency, Defendants-Appellants, Cross-Appellees, Chemical Waste Management, Inc., State of Texas, Intervenors-Appellants, Cross-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John P. Scott, Jr., Marshall Timberlake, Balch & Bingham, Birmingham, Ala., R. Craig Kneisel, Office of the Atty. Gen., Robert D. Tambling, Asst. Atty. Gen., Montgomery, Ala., for State of Ala., Guy Hunt, Don Siegleman & Leigh Pegues.
James Eldon Wilson, U.S. Atty., Montgomery, Ala., for E.P.A.
Maynard, Cooper, Frierson & Gale, P.C., Fournier J. Gale, III, H. Thomas Wells, Jr., Alfred F. Smith, Jr., Birmingham, Ala., for Chemical Waste Management.
John R. Carter, Environmental Protection Division, Austin, Tex., for State of Texas.
David C. Shilton, U.S. Dept. of Justice, Appellate Section, Washington, D.C., for intervenors-appellants, cross-appellees.
Appeals from the United States District Court for the Middle District of Alabama.
Before JOHNSON, HATCHETT and COX, Circuit Judges.
This appeal arises from the issuance of a temporary injunction preventing the shipment of soil contaminated with PCBs and other toxic wastes from the Geneva Industries, Inc., toxic waste site in South Houston, Texas, to Chemical Waste Management (CWM)'s toxic waste treatment facility in Emelle, Alabama. The State of Alabama and its governor, attorney general, and head of the department of environmental management, acting in their capacities as private citizens, filed suit in federal district court seeking to enjoin shipment of these wastes. Plaintiffs asserted both constitutional claims and claims based on the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. Sec. 9601 et seq. (CERCLA).
The district court issued a preliminary injunction halting EPA's participation in the remedial action selected to clean up the Geneva Industries site, and the EPA, along with intervenors State of Texas and CWM, appealed. During the pendency of the appeal, the district court granted partial summary judgment to plaintiffs enjoining the EPA from implementing its remedial action plan to clean up the Geneva Industries site until plaintiffs have had the opportunity to comment on the remedial action plan. This Court granted defendants' motion to consolidate the appeal from the preliminary injunction with the appeal from the grant of summary judgment. We reverse the grant of preliminary injunction, reverse the grant of summary judgment, dissolve the permanent injunction, and dismiss this case for lack of subject matter jurisdiction.
In 1983, Texas submitted the site of Geneva Industries, Inc.'s former petrochemical plant in South Houston, Texas, to be included on the National Priorities List for cleanup by the EPA pursuant to CERCLA. The site is contaminated with polychlorinated biphenyls (PCBs) and other toxic chemicals. The EPA placed this site on the National Priorities List, where it ranked number 37 out of over 700 sites listed. In 1983 and 1984, EPA conducted a planned removal 1 to stabilize the site and to reduce the immediate health and safety risks of the contamination to residents in the area.
In 1984, the Texas Department of Water Resources, the state agency operating in cooperation with the EPA to clean up the site, contracted for a Remedial Investigation and Feasibility Study. This is a preliminary step in cleaning up a hazardous waste site under CERCLA. The contractor evaluated alternative remedial action plans and presented them to the state. In 1986 the Feasibility Study describing the alternatives was released for public comment and review. A public meeting was held in May 1986, and the public comment period was held open until June 10, 1986. On September 18, 1986, the Regional Director of the EPA issued the Record of Decision memorializing the alternative chosen to clean up the Geneva Industries site. The EPA selected offsite disposal of the hazardous wastes. At the time, there were only a limited number of treatment facilities in the United States capable of handling these toxic wastes. Among those facilities was CWM's hazardous waste treatment facility in Emelle, Alabama.
There are two separate federal statutes regulating the Emelle, Alabama, facility. The Toxic Substances Control Act, 15 U.S.C.A. Sec. 2601 et seq. (TSCA), regulates the handling, storage, and disposal of wastes contaminated with PCBs. The Resource Conservation and Recovery Act, 42 U.S.C.A. Sec. 6901 et seq. (RCRA), regulates other hazardous wastes. CWM's Emelle, Alabama, facility is licensed under both federal statutes and under complementary state regulations 2 to handle the wastes located at the Geneva Industries toxic waste site. The TSCA and the RCRA ensure that CWM's toxic waste storage and treatment facility poses the least possible risk to human health and safety.
The TSCA establishes a regulatory framework for the safe handling and disposal of certain highly toxic wastes. Regulations adopted pursuant to the TSCA control the storage and disposal of PCBs. See 40 C.F.R. Sec. 761.75(b)(8). The regulations establish very specific soil, hydrological, geological, and topographical requirements for facilities that dispose of wastes contaminated with PCBs. 40 C.F.R. Sec. 761.75(b)(1), (2), (3), (4), and (5). The regulations also provide for monitoring the groundwater in the vicinity of the chemical waste landfill. 40 C.F.R. Sec. 761.75(b)(6). The permit application process ensures that licensed treatment facilities comply with these requirements. 40 C.F.R. Sec. 761.75(c)(3).
The RCRA establishes a framework for regulating the storage and disposal of hazardous wastes in general. Operators of hazardous waste treatment, storage, and disposal facilities must comply with detailed operating regulations. 42 U.S.C.A. Sec. 6924; see generally 40 C.F.R. Part 264. This includes stringent permit application requirements and regulations. See 42 U.S.C.A. Sec. 6925; see generally 40 C.F.R. Part 270. The regulations promulgated pursuant to the RCRA ensure that facilities disposing of hazardous wastes do so in a manner consistent with eliminating health and environmental risks caused by the hazardous wastes. A permit is valid only for a maximum term of ten years, 40 C.F.R. Sec. 270.50(a), and each permit for a land disposal facility is reviewed after five years and is subject to modification at that point. 40 C.F.R. Sec. 270.50(d). A permit may be terminated for noncompliance with any of its conditions, 40 C.F.R. Sec. 270.43(a)(1), for failure to disclose material information or misrepresentation of material facts, 40 C.F.R. Sec. 270.43(a)(2), or if the activity "endangers human health or environment" and can be regulated only through modification or termination of the permit. 40 C.F.R. Sec. 270.43(a)(3).
CWM's Emelle, Alabama, hazardous waste treatment facility received permits under both the TSCA and the RCRA. This facility thus has complied with elaborate federal regulations designed to ensure the safe disposal of hazardous wastes, including wastes contaminated with PCBs. To the extent these federal regulations can and do provide for the safe treatment and disposal of toxic wastes, CWM's Emelle, Alabama, facility poses no threat to the health and safety of the residents of Emelle or to other Alabama residents. This applies to the material shipped from South Houston, Texas, as well as to the material the facility has handled from Tennessee and from locations within the State of Alabama.
The State and citizens of Alabama participated throughout the process by which CWM received permits to handle hazardous wastes at its Emelle facility. At the time of the original application in May 1978, the State of Alabama strongly supported the grant of the permits. The facility began operating under interim status authorization in November 1980. See 42 U.S.C.A. Sec. 6925(e). In December 1984, EPA, CWM, and the state entered into a Consent Agreement authorizing the facility to handle PCBs. In 1985, citizens of the State of Alabama received notice of the proposed licensing of the Emelle facility for disposal of PCBs under the TSCA. EPA provided twice the period for public comment normally accorded such decisions, held a public information session lasting 7- 1/2 hours in Livingston, Alabama, and held an open public meeting. EPA received 78 oral and 145 written comments on the proposed permit, and responded in detail to each comment. The PCB disposal permit was challenged unsuccessfully in federal court under the Administrative Procedure Act. After response in an acceptable manner to all challenges, the final permit became effective July 11, 1988.
CWM received the contract to dispose of the Geneva Industries site wastes pursuant to a closed bidding contractor selection process. In January 1988, the Texas Water Commission, successor to the Texas Department of Water Resources, solicited sealed bids from contractors for the various projects called for in the Record of Decision. In response, CWM offered the lowest bid for disposal of the contaminated soil, and received the contract on April 8, 1988. The EPA did not select CWM's Emelle, Alabama, toxic waste treatment facility in the Record of Decision for cleanup of the Geneva Industries site. In the...
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