State of N.C. Environmental Policy Institute v. E.P.A., 89-2097
| Decision Date | 08 June 1989 |
| Docket Number | No. 89-2097,89-2097 |
| Citation | 881 F.2d 1250 |
| Parties | The STATE OF NORTH CAROLINA, ENVIRONMENTAL POLICY INSTITUTE, and Conservation Council of North Carolina, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
This case comes before me as a single circuit judge on a motion under Rule 18 of the Federal Rules of Appellate Procedure. Petitioners seek a temporary stay, pending review by this court, of proceedings now in progress before Administrative Law Judge Spencer T. Nissen. In response to a motion by petitioners, Judge Nissen had ordered disclosure of certain information by the Environmental Protection Agency (EPA) during the pendency of those proceedings but declined to stay the proceedings pending disclosure. Petitioners have petitioned the United States Court of Appeals for the Fourth Circuit for review of the part of the order declining to stay proceedings pending disclosure. The motion for temporary stay addressed to me was filed incident to the pending petition for review by the court.
EPA instituted the action underlying the proceedings from which petitioners appeal under the Resource Conservation and Recovery Act (RCRA) to determine whether it should withdraw the state of North Carolina's authority to administer a hazardous waste regulatory program. 42 U.S.C. Sec. 6926(e). EPA initiated the withdrawal proceedings in November 1987, partly in response to petitions filed by GSX Chemical Services, Inc. (GSX) and the Hazardous Waste Treatment Council (HWTC) alleging that 1987 North Carolina legislation, see N.C.Gen.Stat. Sec. 130A-295.01, unlawfully prevented construction of a large regional hazardous waste treatment facility on the banks of the Lumber River in Scotland County, North Carolina. The state statute required a strict dilution factor for discharge of a hazardous or toxic substance into surface water upstream from public drinking water supply intake.
EPA assigned ALJ Nissen to conduct a hearing on the withdrawal proceedings. Petitioners Environmental Policy Institute (EPI) and the Conservation Council of North Carolina obtained intervenor status and joined the state of North Carolina in its opposition to EPA's proposed withdrawal of regulatory authority. Intervenors and the state claimed that the withdrawal was unwarranted because, inter alia, RCRA permits states to adopt more stringent environmental protections than those mandated by the federal government. See 42 U.S.C. Sec. 6929.
Under EPA regulations governing withdrawal of state certification, an ALJ is to conduct an adjudicatory proceeding and submit an initial decision. 40 C.F.R. Sec. 271.23(b)(7)(i). The EPA Administrator then makes a final decision on the certified record. Id. at Sec. 271.23(8)(i). In the present case, the EPA Administrator has officially delegated his authority to the Regional Administrator for the region in which the affected state is located (Region IV). Under this delegation, the Regional Administrator must obtain the concurrence of the EPA Assistant Administrator for Solid Waste and Emergency Response for any decision made. Because the Regional Administrator for Region IV, Greer C. Tidwell, has now recused himself, EPA has transferred authority over the withdrawal proceedings to the Regional Administrator for Region IX. The papers before me do not reflect whether this transfer has yet been formally completed, but EPA counsel assured me at the stay hearing that it has been.
Early in 1988, EPA continued the withdrawal proceedings pending comprehensive review of national hazardous waste management and disposal capacity policy. See 53 Fed.Reg. 3894 (Feb. 10, 1988) (continuing postponement until June 29, 1988). The agency subsequently prolonged the postponement on several occasions. See 53 Fed.Reg. 20845 (June 7, 1988) (continuing postponement until September 19, 1988); 53 Fed.Reg. 32899 (August 29, 1988) (). In December 1988, GSX and HWTC filed a petition in the Court of Appeals for the District of Columbia Circuit, reportedly seeking a writ of mandamus ordering EPA to schedule and hold a withdrawal hearing within 30 days. During the pendency of that petition, on April 19, 1989, EPA Region IV Administrator Tidwell issued a notice announcing resumption of the withdrawal proceedings. ALJ Nissen scheduled a prehearing conference for May 31, 1989 in Raleigh, North Carolina, which was to be followed immediately by a hearing on the merits of EPA's proposed withdrawal of North Carolina's RCRA authorization. By joint motion of petitioners and respondent, the D.C.Circuit then continued consideration of the mandamus petition pending completion of the hearing. In re Hazardous Waste Treatment Council and GSX Chem. Serv., Inc., No. 88-1889 .
Petitioners subsequently sought from EPA a stay of the hearing pending disclosure of alleged ex parte communications between EPA officials and certain "interested parties" on the merits of the withdrawal proceedings. Petitioners claim to have suspected for some time that the withdrawal proceedings might be tainted by such communications. In a letter dated April 22, 1988, attorneys from the North Carolina Department of Justice wrote then EPA Administrator Lee Thomas requesting disclosure of all alleged ex parte communications on this issue. (Because EPA subsequently continued the withdrawal proceedings, it responded in a letter dated October 24, 1988 that it was suspending further investigation of the matter.) More recently, petitioners have again sought disclosure of any ex parte communications, filing motions requesting that the Administrator or ALJ Nissen order a hearing and permit discovery in order to investigate ex parte communications. On May 12, 1989, the ALJ denied the motion on the ground that only the EPA Administrator had jurisdiction to resolve such matters. The EPA Administrator remanded a separate but similar motion to the ALJ on May 26, 1989. At a prehearing conference on May 31, 1989, ALJ Nissen orally granted petitioners' motion for disclosure of all ex parte communications by EPA on the merits of the withdrawal proceedings but denied the accompanying request for a continuance of the hearing pending disclosure.
The moving parties--the State of North Carolina, the Environmental Policy Institute, and the Conservation Council of North Carolina--have now petitioned the Fourth Circuit for review under the RCRA, 42 U.S.C. Sec. 6976(b), the Administrative Procedure Act (APA), 5 U.S.C. Secs. 551-59, 701-06, and seek relief alternatively under the All Writs Act, 28 U.S.C. Sec. 1651(a). Contemporaneously they have brought this motion before me as a single circuit judge under Rule 18 of the Federal Rules of Appellate Procedure, seeking a stay of all administrative proceedings pending consideration by this court of the merits of their petition. GSX and HWTC sought to intervene on the side of EPA, and I allowed that motion.
On Friday, June 2, 1989, the parties appeared before me for a hearing on the motion for temporary stay. At the hearing's conclusion, I indicated my intent to deny the Rule 18 stay motion, and I now do so for the reasons expressed below.
At the outset, EPA, joined by the intervenors, suggests that this court and I lack (or should not assert) jurisdiction to entertain the petition for review or, in consequence, this Rule 18 motion. Two grounds are urged: (1) the D.C.Circuit's acceptance of intervenors' petition for mandamus has vested jurisdiction in that court, to the exclusion of all others; and (2) the underlying petition here improperly seeks review of a non-final administrative order.
Petitioners claim that we have jurisdiction under the All Writs Act to grant the requested relief in aid of our potential jurisdiction, under 42 U.S.C. Sec. 6976(b), over any petition for review of EPA's final action in the withdrawal proceedings. Section 6976(b) of the Act provides that "[r]eview of the [EPA] Administrator's action ... in granting, denying, or withdrawing authorization or interim authorization under [42 U.S.C. Sec. ] 6926 ... may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business upon application by such person." This provision obviously leaves open the possibility that more than one court of appeals will have the power to review EPA's final action in a withdrawal proceeding, because the "interested person[s]" may reside in more than one "Federal judicial district." EPA and the intervenors suggest that this court should decline to exercise jurisdiction over this case precisely because of the resulting potential, said to be present here, for an "embarassing conflict between different courts of appeals." 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3944, at 334 (1977). Since the D.C.Circuit has already accepted a petition for All Writs relief in aid of its prospective jurisdiction over this case under Sec. 6976(b), says the respondent we should...
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