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Marine Shale Processors, Inc. v. EPA

ELR Citation: 26 ELR 21004
Nos. 95-60228, 81 F.3d 1371/42 ERC 1516/(5th Cir., 04/18/1996)

The court holds that the U.S. Environmental Protection Agency (EPA) was not constitutionally barred from considering a facility's boiler and industrial furnace (BIF) permit application while a federal government suit over the facility's alleged incineration of hazardous waste without a permit was pending in district court. EPA denied the permit application after determining that the facility's kiln did not produce commercial grade aggregate and thus was not an industrial furnace. The court first holds that Congress did not violate either the Seventh Amendment to or Article III of the U.S. Constitution by providing that EPA should adjudicate the permit application. The court next rejects the facility owner's Seventh Amendment and Article III challenge to EPA's considering the permit application at the same time that the government's suit was pending in district court. EPA was not seeking to review or alter the decision in the district court, to reverse the district court's findings, or to interfere with the judiciary's ability to issue a binding decision. In addition, because the permit application triggered a public-rights dispute, the facility has no right to a jury trial in that proceeding. The court rejects the facility owner's argument that EPA's permit denial violated the principle of collateral estoppel. EPA decided questions that the jury did not. The court next holds that EPA's findings of fact and conclusions of law were sufficient to support EPA's decision to deny the permit. EPA did not arbitrarily or capriciously conclude that the overwhelming majority of the facility's wastes were burned for destruction, not for recovery of energy or materials. Also, EPA may interpret the regulatory definition of BIFs to include a focus on the primary purpose of the facility or the role played by wastes processed within it. The court refuses to upset EPA's conclusion that the facility's material is not commercial grade aggregate. Finally, the court holds that no due-process violation resulted from the roles of two federal government employees in the permit proceedings. Although one individual, the director of EPA Region VI's Hazardous Waste Management Division, initially determined based on some evidence that the facility should not receive a BIF permit, that did not prevent him from deciding the issue fairly when confronted with all the evidence. And although another individual was one of the U.S. attorneys in the enforcement action at pretrial and early in the trial itself, and then wrote a draft of findings of fact and conclusions of law that served as the basis for EPA's statement justifying the permit denial, she had a small role in the decisionmaking process.

[Decisions in related cases are published at 26 ELR 21000 and 21012. Briefs and pleadings in this and related litigation are digested at ELR BRIEFS & PLEADS. 66396 and 66397.]

Counsel for Petitioner
Christopher H. Marraro, Thomas J. Horton
Howrey & Simon
1299 Pennsylvania Ave. NW, Washington DC 20004
(202) 783-0800

Counsel for Respondent
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000