Chemical Waste Management, Inc. v. U.S. E.P.A., No. 93-1860

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore BUCKLEY, WILLIAMS and SENTELLE; SENTELLE
Citation56 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.
Decision Date16 June 1995
Docket NumberNo. 93-1860

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.

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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

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if more time is required to review a submission. 40 C.F.R. Sec....

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  • Mallinckrodt LLC v. Littell, No. CV-08-420-B-W.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • May 20, 2009
    ...Corporation v. Chester, 455 F.Supp.2d 680 (E.D.Mich.2006), and Chemical Waste Management v. United States Environmental Protection Agency, 56 F.3d 1434 (D.C.Cir.1995). Both cases involved concern about potential due process violations where an administrative scheme shifted the burden from t......
  • General Electric Company v. Johnson, No. CIV.A. 00-2855(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 30, 2005
    ...106 order by going to court, and therefore there was no deprivation. Id. at 1375 n. 10. Additionally, in Chemical Waste Mgmt. v. U.S. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995), the D.C. Circuit applied the Mathews analysis to EPA's issuance of off-site rules. In doing so, the court assumed a c......
  • Pactiv Corp. v. Chester, Civil No. 05-71116.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • September 28, 2006
    ...in dicta, when the burden is shifted from the government to the subject of an order. Chem. Waste Mgmt., Inc. v. Envtl. Prot. Agency, 56 F.3d 1434, 1438 (1995). I see this factor as increasing the risk of an erroneous Overall, therefore, I think Plaintiff has alleged enough of an increased r......
  • Ruggiero v. F.C.C., No. 00-1100.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 31, 2003
    ...549, 154 L.Ed.2d 424 (2002); James Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.Cir.1996); Chem. Waste Mgmt., Inc. v. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995); Steffan v. Perry, 41 F.3d 677, 693 (D.C.Cir.1994) (en banc); but see INS v. Nat'l Ctr. for Immigrants' Rights, 502 U.S. ......
  • Request a trial to view additional results
17 cases
  • Mallinckrodt LLC v. Littell, No. CV-08-420-B-W.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • May 20, 2009
    ...Corporation v. Chester, 455 F.Supp.2d 680 (E.D.Mich.2006), and Chemical Waste Management v. United States Environmental Protection Agency, 56 F.3d 1434 (D.C.Cir.1995). Both cases involved concern about potential due process violations where an administrative scheme shifted the burden from t......
  • General Electric Company v. Johnson, No. CIV.A. 00-2855(JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 30, 2005
    ...106 order by going to court, and therefore there was no deprivation. Id. at 1375 n. 10. Additionally, in Chemical Waste Mgmt. v. U.S. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995), the D.C. Circuit applied the Mathews analysis to EPA's issuance of off-site rules. In doing so, the court assumed a c......
  • Pactiv Corp. v. Chester, Civil No. 05-71116.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • September 28, 2006
    ...in dicta, when the burden is shifted from the government to the subject of an order. Chem. Waste Mgmt., Inc. v. Envtl. Prot. Agency, 56 F.3d 1434, 1438 (1995). I see this factor as increasing the risk of an erroneous Overall, therefore, I think Plaintiff has alleged enough of an increased r......
  • Ruggiero v. F.C.C., No. 00-1100.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 31, 2003
    ...549, 154 L.Ed.2d 424 (2002); James Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.Cir.1996); Chem. Waste Mgmt., Inc. v. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995); Steffan v. Perry, 41 F.3d 677, 693 (D.C.Cir.1994) (en banc); but see INS v. Nat'l Ctr. for Immigrants' Rights, 502 U.S. ......
  • Request a trial to view additional results

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