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Chemical Waste Management, Inc. v. EPA

Citation: 19 ELR 20868
No. No. 88-1490, 873 F.2d 1477/29 ERC 1561/(D.C. Cir., 05/05/1989)

The court holds that the Environmental Protection Agency's (EPA's) informal procedures for administrative hearings concerning the issuance of corrective action orders under § 3008(h) of the Resource Conservation and Recovery Act (RCRA) are reasonable. The 1984 RCRA amendments added subsection (h) to § 3008 authorizing EPA to issue an order requiring corrective action where there has been a release of hazardous waste from an interim facility. The amendments provided that noncompliance with a corrective action order could result in civil penalties and provided, in RCRA § 3008(b), a right to a public hearing. EPA's regulation implementing § 3008(h) provided that formal adjudicatory procedures are only applicable to challenges to § 3008(h) corrective action orders that include a suspension or revocation of interim status or an assessment of civil penalties for noncompliance; requests for investigations and other interim corrective measures, depending upon the burden entailed by such measures, only require informal adjudicatory procedures. The court initially holds that the provision in RCRA § 3008(b) that provides that EPA "may" promulgate rules for discovery does not require formal hearing procedures for § 3008(h) corrective action orders, since the language in § 3008(b) is permissive rather than mandatory. The court then holds that § 3008(b) does not require formal procedures in all subsection (h) adjudications. Section 3008(b) requires a public hearing but does not indicate whether Congress intended that formal or informal hearing procedures be used. EPA's formal procedures for hearings on orders issued under § 3008(a) derive from the nature of the issues raised by such orders, not the statutory language, and do not impose a requirement for formal procedures in all circumstances. Although Congress extended to § 3008(h) the right to a § 3008(b) public hearing when Congress authorized EPA to issue corrective action orders under the new subsection (h), Senator Chafee's statement that the hearing procedures set out in § 3008(b) are applicable to § 3008(h) corrective action orders is ambiguous, since there is no evidence that the Senator was referring to EPA's regulations rather than the statute itself. Even if this circuit may have held that an adjudicatory hearing mandated by statute is presumptively governed by on-the-record procedures (even if the statute itself is not clear), the court rules that such a presumption will no longer be applied in light of the Supreme Court's 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, 14 ELR 20507.

The court holds that EPA's interpretation of § 3008(b) to allow informal adjudicatory procedures for § 3008(h) orders was reasonable. EPA has projected that the typical § 3008(h) corrective action order will involve fewer factual issues than a § 3008(a) compliance order, and the presiding officer of a § 3008(h) adjudicatory hearing has discretion to tailor the hearing to the facts of the case. While EPA cannot rely on the need for swift adjudication as the basis for using informal hearing procedures, the court holds that EPA has provided a reasonable explanation for using informal procedures. The court holds that the new hearing regulations do not on their face deny procedural due process rights. The court rules that an interim operator's interest in not having to undertake costly investigations or corrective measures is insufficient to strike down administrative procedures in a facial due process challenge. While EPA has not yet promulgated standards for corrective action, available sources exist to guide presiding officers in conducting informal hearings. The court holds that due process does not require that an administrative law judge preside over a § 3008(h) hearing. Although a presiding officer may be an agency attorney, even a subordinate of the prosecuting attorney, § 3008-type hearings do not typically involve determinations of witness credibility, but instead turn on technical data and policy judgments, requiring less formal hearings. Finally, the court finds that requiring formal adjudicatory hearings would double the cost to EPA, effectively impairing its ability to enforce § 3008(h). Formal proceedings do not promise a sufficient lowering of the risk of error to justify their significant expense to the government, and EPA can likely avoid problematic applications as they arise.

Counsel for Petitioners
J. Brian Molloy, Joan Z. Bernstein, Daniel M. Darragh
1200 19th St. NW, Ste. 800, Washington DC 20036
(202) 861-3900

Counsel for Respondent
Mark R. Haag
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4642

Before: WALD, Chief Judge, and STARR and D. H. GINSBURG, Circuit Judges.