Chemical Waste Management, Inc. v. U.S. E.P.A.

• Decision Date: 16 June 1995
• Docket Number: No. 93-1860,93-1860
• Citation: 56 F.3d 1434
• Parties: , 312 U.S.App.D.C. 364, 64 USLW 2032, 25 Envtl. L. Rep. 21,214 CHEMICAL WASTE MANAGEMENT, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1434

56 F.3d 1434

40 ERC 1989, 312 U.S.App.D.C. 364, 64

USLW 2032,

25 Envtl. L. Rep. 21,214

CHEMICAL WASTE MANAGEMENT, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 93-1860.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 1995.

Decided June 16, 1995.

Michael W. Steinberg, Washington, DC argued the cause for petitioners Chemical Waste Management, Inc., et al. With him on briefs was Michael A. McCord, Washington, DC.

Sylvia Quast, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for respondent. With her on the brief were Lois J. Schiffer, Acting Asst. Atty. Gen., and Daniel S. Goodman, U.S. Dept. of Justice, Earl Salo, Asst. Gen. Counsel, U.S.E.P.A., Washington, DC.

Before BUCKLEY, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

Petitioners, Chemical Waste Management, Inc. and E.I. DuPont de Nemours & Co., Inc., challenge an Environmental Protection Agency ("EPA") off-site rule, 40 C.F.R. Sec. 300.440 (1994), delineating procedures the EPA uses to classify commercial hazardous waste management facilities as "unacceptable" to contract with the EPA, the state, or a private party to manage wastes removed from Superfund sites. Specifically, petitioners make a facial challenge to the off-site rule, arguing the supplied procedures are inadequate to satisfy the demands of due process. While petitioners raise serious questions as to the constitutionality of this rule, we hold that they have not satisfied their burden in bringing a facial challenge. Accordingly, we make no determination on the merits, but dismiss this petition.

I. BACKGROUND

Superfund cleanups concern the removal of wastes from contaminated sites for proper management at off-site facilities, possessing federal and state permits to handle such waste. These permits are issued under sections 3004 and 3005 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Secs. 6924-6925 (1988). The EPA is authorized under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") to perform cleanups or to require that private parties deemed liable for the contamination perform the work under EPA oversight. 42 U.S.C. Secs. 9601-9675 (1988 and Supp. IV 1992). These private parties often contract with waste-processing facilities to handle such waste. Specifically, CERCLA authorizes the EPA to respond to actual and threatened releases of hazardous substances and "any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare." 42 U.S.C. Sec. 9604(a)(1). Response actions authorized by CERCLA include both remedial actions and removal actions. 42 U.S.C. Sec. 9601(25).

In 1985, the EPA issued its off-site policy, 50 Fed.Reg. 45,933 (1985), under which off-site facilities were required to have permits or interim status under the RCRA in order to receive wastes from Superfund cleanups. Portions of this policy were codified in the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). Pub.L. No. 99-499, 100 Stat. 1613 (1986). SARA added section 121(d)(3) of CERCLA, 42 U.S.C. Sec. 9621(d)(3), which established the conditions under which hazardous substances may be transferred from CERCLA sites to off-site facilities for treatment, storage, and disposal. Among other things, the section requires the removal of hazardous waste only to those facilities in compliance with sections 3004 and 3005 of the RCRA, as well as other applicable federal and state laws and regulations. 42 U.S.C. Sec. 9621(d)(3). In most states, the state, rather than the EPA, administers the RCRA hazardous waste program. The state operates its own RCRA program, consisting of state statutes and regulations in lieu of the federal scheme. 42 U.S.C. Sec. 6926(b) (1988). The EPA's role is generally limited to one of oversight.

In 1987, the EPA issued its revised off-site policy, entitled "Revised Procedures for Implementing Off-Site Response Actions" (Nov. 13, 1987). The revised policy incorporated many of the provisions of section 121(d)(3) of CERCLA. The policy also set forth revised procedures governing whether a waste management facility is determined unacceptable to continue to process waste. On November 29, 1988, the EPA published its proposed off-site rule for public comment. 53 Fed.Reg. 48,218 (1988). The proposal generally adopted the procedural scheme under the revised policy. Id.

On September 22, 1993, the EPA published the final off-site rule at issue here. 58 Fed.Reg. 49,200 (1993). Under this rule, either the state or the EPA makes a finding that a violation exists at the facility. 40 C.F.R. Sec. 300.440(a)(4), (c). If the EPA decides the violation is relevant, the EPA issues an initial determination of "unacceptability," 40 C.F.R. Sec. 300.440(c), and must notify the facility. 40 C.F.R. Sec. 300.440(d)(1). Notice must include the "specific acts, omissions, or conditions which form the basis" of the initial unacceptability determination. 40 C.F.R. Sec. 300.440(d)(2). The regulatory criteria for acceptability are set forth at 40 C.F.R. Sec. 300.440(b).

The facility can request an informal conference with the EPA Regional Office within 10 days of the date of the notice to discuss the basis for the underlying violation, or may submit written comments within 30 days of that date, or both. 40 C.F.R. Sec. 300.440(d)(4). If the facility requests a conference, such conference will take place no later than 30 days after the date of the notice. Id. No state representative is required to attend the conference, but may voluntarily do so. Id. The facility bears the burden of proving its acceptability. Unless the EPA determines the information provided is adequate to support a finding of acceptability, the facility becomes "unacceptable" on the 60th day after the initial notice. 40 C.F.R. Sec. 300.440(d)(6). The EPA Regional Administrator may extend this 60 day period if more time is required to review a submission. 40 C.F.R. Sec. 300.440(d)(8).

The facility may request, within 10 days, reconsideration by the EPA Regional Administrator. 40 C.F.R. Sec. 300.440(d)(7). The Administrator has discretion to decide whether the reconsideration should be based on a review of the existing record, an additional conference, or other appropriate means. Id. Finally, a facility found unacceptable may seek to regain acceptability after the relevant violations have been corrected. 40 C.F.R. Sec. 300.440(f).

Petitioners timely sought review of this rule.

II. DISCUSSION

Petitioners make a facial challenge to the off-site rule, asserting the rule does not comply with the mandates of due process. Petitioners allege myriad procedural deficiencies. We need not enumerate every perceived inadequacy, but rather present an overview of petitioners' contentions. First, while the rule directs the EPA to issue a notice of unacceptability based on a finding of noncompliance, the rule does not require that these findings satisfy any threshold level, or be documented in a particular manner. Rather these "findings" may amount to mere allegations of noncompliance contained, for instance, in a complaint or criminal indictment. See 40 C.F.R. Secs. 300.440(b)(1)(ii), (f). None of these documents must necessarily contain findings made by an impartial decisionmaker. In addition, the rule provides no ascertainable standard for reviewing such findings. The EPA may simply decide whether a particular violation is relevant, thus bypassing the fundamental question of whether the facility is actually in violation. The EPA might thus make its unacceptability determination based on the initial "finding," without ever making an independent finding of noncompliance.

In addition, the informal conference itself provides a facility with minimal procedural protections. The stated purpose of the informal conference is to discuss the basis for the underlying violation, 40 C.F.R. Sec. 300.440(d)(4), not to resolve disputes over whether the finding is correct. The EPA employee heading the conference is thus not authorized to overrule a finding of noncompliance. Moreover, a facility has no right to take discovery regarding the findings, nor can it subpoena witnesses or documents. It thus might have no opportunity to confront or question those persons who made the initial finding of noncompliance at the conference. A facility also bears the burden of proof at the conference. "Unless EPA determines that information provided by the owner/operator and the State is sufficient to support a determination of acceptability, the facility becomes unacceptable on the 60th calendar day...." 40 C.F.R. Sec. 300.440(d)(6). Basically, the facility must refute an allegation of noncompliance by proving the absence of any violation.

Petitioners also contend the off-site rule fails to provide fair and adequate post-deprivation procedures. For instance, they allege the process of reconsideration has no standard of review nor deadline to insure timely corrections of erroneous decisions by EPA staff.

The EPA responds, as a threshold matter, that petitioners have failed to establish that they possess a constitutionally protected property or liberty interest. Regarding the alleged property interest, the EPA maintains it is not revoking a facility's RCRA permit, but is simply determining that the facility is not eligible to receive hazardous waste from a CERCLA-funded cleanup. Nor is the EPA barring unacceptable facilities from continuing to receive non-CERCLA wastes.

According to the EPA, petitioners fare no better...