911 F.2d 499 (11th Cir. 1990), 88-7523, State of Ala. ex rel. Siegelman v. United StatesE.P.A.

Docket Nº88-7523.
Citation911 F.2d 499
Party NameSTATE OF ALABAMA, ex rel. Don SIEGELMAN, Attorney General, Alabamians For a Clean Environment, Sierra Club-Alabama Chapter, Alabama Conservancy and Greenpeace, U.S.A., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Lee Thomas, in his official capacity as Administrator of the Environmental Protection Agency, Respondents, Chemical
Case DateAugust 23, 1990
CourtUnited States Courts of Appeals, United States Court of Appeals (11th Circuit)

Page 499

911 F.2d 499 (11th Cir. 1990)

STATE OF ALABAMA, ex rel. Don SIEGELMAN, Attorney General,

Alabamians For a Clean Environment, Sierra

Club-Alabama Chapter, Alabama

Conservancy and Greenpeace,

U.S.A., Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Lee

Thomas, in his official capacity as Administrator

of the Environmental Protection Agency,

Respondents,

Chemical Waste Management, Inc., Intervenor.

No. 88-7523.

United States Court of Appeals, Eleventh Circuit

August 23, 1990

Page 500

Don Siegelman, Atty. Gen., C. Dean Monroe, III, Asst. Atty. Gen., Montgomery, Ala., for petitioner.

Gary Davis, Knoxville, Tenn., for Alabamians for a Clean Environment, et al.

W. Christian Schumann, U.S. Dept. of Justice, Fredric D. Chanania, U.S.E.P.A., Office of Gen. Counsel, Washington, D.C., Elizabeth Osheim, Philip G. Mancusi-Ungaro, U.S.E.P.A., Region IV, Hazardous Waste Law Branch, Atlanta, Ga., for U.S.E.P.A.

J. Brian Molloy and Mary F. Edgar, Piper & Marbury, Washington, D.C., Fournier J. Gale, III, Jarred O. Taylor, II, Maynard Cooper, Frierson & Gale, Birmingham, Ala., for Chemical Waste Management, Inc.

Petitions for Review of an Order of the Environmental Protection Agency.

Page 501

Before EDMONDSON, Circuit Judge, HILL [*] and HENDERSON, Senior Circuit Judges.

EDMONDSON, Circuit Judge:

Pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Secs. 6901-6992k (1982 & Supp. V 1987) ("RCRA"), the Environmental Protection Agency ("EPA") issued a final operating permit for the nation's largest hazardous waste management facility, located at Emelle, Alabama. We are asked to decide whether EPA's procedures in issuing the permit were sufficient to exempt EPA from performing an environmental impact study in compliance with the National Environmental Policy Act, 42 U.S.C. Secs. 4321-4370b (1982 & Supp. V 1987) ("NEPA"). The answer is "Yes." We are also asked to decide whether EPA violated its own procedural requirements governing public participation and whether EPA's waiver of a ground water monitoring requirement was arbitrary and capricious. The answer is "No." We affirm the EPA Administrator's decision to uphold EPA's issuance of the permit for the Emelle facility.

I. BACKGROUND

The Emelle facility, owned and operated by Chemical Waste Management, Inc. ("ChemWaste"), receives hazardous wastes from forty-eight states. The facility covers 2730 acres of land and includes twenty inactive landfill trenches, one active trench, an aqueous waste storage pond, a waste drum storage area, a liquid waste tank storage area, a liquid waste solidification unit, and a solvent and fuel recovery area. Emelle receives almost every type of hazardous waste identified in the RCRA regulations at 40 C.F.R. Part 261, including waste that is toxic, corrosive, flammable, and reactive, but does not accept municipal refuse or garbage, radioactive wastes, or explosive wastes.

RCRA, which establishes a "cradle-to-grave" system for regulating the treatment, storage, and disposal of hazardous wastes, requires hazardous waste management facilities like Emelle to receive an operating permit from EPA. 1 See 42 U.S.C. Sec. 6925. Alabama requires that hazardous waste management facilities also obtain an operating permit from the state, see Ala.Code Sec. 22-30-12 (1989); such permits are issued by the Alabama Department of Environmental Management ("ADEM").

Under RCRA, facilities that were already in operation in November 1980 are allowed to continue operating on an interim basis until a final permit can be issued. 2 See 42 U.S.C. Sec. 6925(e). ChemWaste, operating the Emelle facility under an interim permit, filed its application for a final permit in 1983. ChemWaste's application requested authority to operate the facility permanently and to expand the facility. ChemWaste proposed adding four landfill trenches and a large amount of container storage facilities and asked for a waiver of ground water monitoring relative to the landfill disposal. 3

EPA's Regional Office, after determining that ChemWaste's application for a final RCRA permit was complete, issued a "draft" permit in 1986, commencing a period for public hearing and comments. Jointly with ADEM, EPA held a public hearing

Page 502

in Alabama and accepted and responded to comments from interested parties. 4 In 1987, EPA issued the final permit for the Emelle facility, approving ChemWaste's proposed expansions and waiving certain ground water monitoring requirements. 5 To our knowledge, ADEM has not issued a final state permit; ADEM's actions are not challenged in this appeal.

When EPA issued Emelle's permit, EPA did not prepare an environmental impact study ("EIS") under NEPA. EPA followed one of its own regulations, promulgated in 1980 shortly after RCRA took effect, which states EPA's position that the RCRA permit process supplants the requirements of NEPA and that EPA need not comply with NEPA when granting RCRA permits. See 40 C.F.R. Sec. 124.9(b)(6). 6

The petitioners in this case are the State of Alabama and four citizen organizations: Alabamians for a Clean Environment; the Alabama Chapter of the Sierra Club; the Alabama Conservancy; and Greenpeace, U.S.A. Petitioners appealed the EPA Regional Office's issuance of ChemWaste's permit to the EPA Administrator, who refused to rescind Emelle's permit, ruling that EPA had not violated NEPA because the RCRA permit process was functionally equivalent to the requirements of NEPA. The Administrator also said that EPA had satisfied all procedural requirements for issuing the permit and had not acted arbitrarily in allowing a waiver of ground water monitoring. The Administrator's decision is the basis of this appeal. 7 Under the Administrative Procedure Act, 5 U.S.C. Secs. 701-706 (1982), our role is to determine: (1) whether EPA acted within the scope of its authority; (2) whether EPA's decision to issue the permit was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; and (3) whether EPA followed procedural requirements in issuing the permit. See 5 U.S.C. Sec. 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-17, 91 S.Ct. 814, 822-24, 28 L.Ed.2d 136 (1971).

II. DISCUSSION

  1. Collateral Estoppel

    Following EPA's public meeting to accept oral comments on the draft permit, the four citizen organizations aligned as petitioners in this case brought an action in federal district court in Alabama. See Alabamians for a Clean Environment v. EPA, 26 ERC 2116 (N.D.Ala.1987). The citizen organizations asked the district court to enjoin EPA from issuing a final permit for Emelle; the organizations argued that EPA was required to perform an EIS in compliance with NEPA. The district court refused to grant the injunction

    Page 503

    and instead dismissed the case for failure to state a claim under Fed.R.Civ.P. 12(b)(6), ruling that EPA was not obliged to comply with NEPA when exercising its permitting authority under RCRA. The district court said that RCRA placed requirements on EPA that were functionally equivalent to the requirements of NEPA. The citizen organizations did not appeal.

    EPA contends that the issue of whether it was required to perform an EIS in compliance with NEPA is barred in this case by collateral estoppel. 8 Petitioners here concede that they are raising the identical issue of whether EPA was required to comply with NEPA in issuing a RCRA permit to the Emelle facility, but petitioners urge this court to conclude that the State of Alabama is not bound by the earlier decision.

    We agree with petitioners that the State of Alabama is not precluded from pursuing this issue. Although ADEM, an Alabama state agency, was a defendant in the action in district court, ADEM was not involved in litigating the question of EPA's duties in the light of NEPA. ADEM was a defendant under a separate count of the complaint that alleged a due process violation in connection with the state's permitting procedures. 9 Accordingly, even if Alabama is in privity with ADEM, neither ADEM nor Alabama are bound by the district court decision on an issue arising between other parties and not affecting ADEM. See Stryker v. Crane, 123 U.S. 527, 538-39, 8 S.Ct. 203, 208-09, 31 L.Ed. 194 (1887); Stafford v. General Supply Co., 5 Wis.2d 137, 92 N.W.2d 267, 271 (Wis.1958); see also Hurt v. Pullman, Inc., 764 F.2d 1443, 1448-50 (11th Cir.1985). Put differently, because the plaintiffs stated no cause of action against and sought no relief from ADEM on account of EPA's refusal to follow NEPA, and because ADEM filed no cross-claim against EPA on the question, ADEM was not a party to the litigation of the NEPA issue in district court. 10

  2. Compliance with NEPA

    By enacting NEPA, Congress declared a broad national commitment to protecting and promoting environmental quality. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 1844, 104 L.Ed.2d 351 (1989). To ensure that this commitment is implemented throughout the federal government, NEPA forces federal agencies to prepare detailed studies of the environmental effects of their actions. These studies serve two important purposes: (1) the agency is forced to consider carefully detailed information about significant environmental impacts; and (2) relevant environmental information is made available to the members of the public, who can then play a role in the agency's decisionmaking process and implementation of that decision. See Robertson, 490 U.S. at ----, 109 S.Ct. at 1845.

    NEPA requires that "to the fullest extent possible ... all agencies of the Federal

    Page 504

    government shall ... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--(i)...

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  • Traveling in opposite directions: roadless area management under the Clinton and Bush Administrations.
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    • Environmental Law Vol. 34 Nbr. 4, September 2004
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    ...obligations derived from the Administrative Procedure Act); see also Alabama ex rel. Siegelman v. United States Envtl. Prot. Agency, 911 F.2d 499, 506 (11th Cir. 1990) (holding that the agency provided more time for public comment than required by regulation, and therefore provided meaningf......
3 books & journal articles
  • Bias in environmental agency decision making.
    • United States
    • Environmental Law Vol. 45 Nbr. 4, September 2015
    • September 22, 2015
    ...& Pol'y Rev. 41, 49-50 (2013) (discussing the problem of the "revolving door"). (148) See, e.g., Alabama v. U.S. Envtl. Prot. Agency, 911 F.2d 499, 506 (11th Cir. 1990) (finding no bias where party employs former agency officials); West Virginia v. Ohio Hazardous Waste Facility Approval......
  • A critical discussion of critical habitat designations: is compliance with the National Environmental Policy Act required?
    • United States
    • Environmental Law Vol. 42 Nbr. 4, September 2012
    • September 22, 2012
    ...to hold that the EPA's cancellation of poison registrations under FIFRA was exempt from NEPA). (116) Alabama v. U.S. Envtl. Prot. Agency, 911 F.2d 499, 505 (11th Cir. 1990) (using the functional equivalence exemption to hold that the EPA is exempt from NEPA for actions taken pursuant to the......
  • Traveling in opposite directions: roadless area management under the Clinton and Bush Administrations.
    • United States
    • Environmental Law Vol. 34 Nbr. 4, September 2004
    • September 22, 2004
    ...obligations derived from the Administrative Procedure Act); see also Alabama ex rel. Siegelman v. United States Envtl. Prot. Agency, 911 F.2d 499, 506 (11th Cir. 1990) (holding that the agency provided more time for public comment than required by regulation, and therefore provided meaningf......

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