18 ELR 20460 -- Alabamians for a Clean Environment v. Thomas

Alabamians for a Clean Environment v. Thomas

No. CV 87-P-0797-W (N.D. Ala. December 8, 1987)

The court holds that the Environmental Protection Agency's (EPA's) procedures for issuing Resource Conservation and Recovery Act (RCRA) permits are the functional equivalent of an environmental impact statement (EIS). The court first holds that it has subject matter jurisdiction to consider the need for an EIS under the National Environmental Policy Act (NEPA), since NEPA claims are routinely heard in federal district courts. Although challenges to final EPA action on RCRA permits are heard in courts of appeals, EPA action in this case is not yet final. Although courts are split over whether plaintiffs must exhaust their administrative remedies before invoking district court jurisdiction in such circumstances, exhaustion of administrative remedies is not required where it would be futile. That is the case here, since administrative appeals within EPA are limited to the standards set forth in RCRA itself, not whether an EIS is required.

The court next holds that EPA's RCRA procedures are the functional equivalent of an EIS. Functional equivalence is a judicially created doctrine that exempts EPA from NEPA requirements when its adherence to other substantive and procedural standards ensures full and adequate consideration of environmental issues, but this is the first case to consider the issue under RCRA. The court holds that RCRA provides an orderly and comprehensive mechanism to ensure that environmental factors are sufficiently taken into account.

Finally, the court holds that allegations that EPA and the Alabama Department of Environmental Management violated the due process rights of the plaintiffs are not ripe, since there is no final agency action. Even if the claims were ripe, they would be denied. The fact that the Alabama Department of Environmental Management would receive a permit fee is not a sufficiently close benefit to create constitutionally impermissible bias, and officials' statements prior to the public hearings are not enough to disqualify them. Also, while the plaintiffs are entitled to a hearing and notice of the permit application, they do not have a constitutional right to be provided with understandable information about the permit or to have their comments taken in any particular manner.

Counsel for Plaintiff
Gary A. Davis
707 S. Gay St., Knoxville TN 37902
(615) 637-0693

Counsel for Defendant
David Kaplan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2308

[18 ELR 20460]

Pointer, J.:

Memorandum of Opinion

I. Facts

Chemical Waste Management, Inc. ("Chem Waste") owns and operates a hazardous waste treatment and disposal facility in Emelle, Alabama. It is presently involved in an attempt to secure a federal hazardous waste permit from the United States Environmental Protection Agency ("EPA") under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6925, and a state hazardous waste permit from the Alabama Department ofEnvironmental Management ("ADEM") under the Hazardous Wastes Management Act of 1978, Ala. Code § 22-30-12 (1975). These permits are necessary for the continued operation and proposed expansion of the facility.^[1]

Chem Waste initially submitted its permit applications for the Emelle facility to the EPA and the ADEM in 1983. In September 1986, after the applications were revised several times, the agencies issued proposed hazardous waste permits. Additionally, the ADEM issued a proposed water pollution permit and a proposed air pollution permit. After a public hearing, but prior to the actual final issuance of the four permits, a group of four environmental organizations filed this action against Lee Thomas, the Administrator of the EPA, and Leigh Pegues, the Administrator of the ADEM, arguing that the proposed permits would allow Chem Waste to expand significantly the size and the capabilities of the facility to the detriment of both the environment and the health of persons living near the site.^[2]

The plaintiffs' complaint contains two counts. In Count I, they contend that Defendant Lee Thomas, the Administrator of the EPA, violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332. Section 4332(2)(C) of that statute requires agencies of the federal government to "include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment" a detailed statement concerning the environmental impacts of the federal action. Believing that the issuance of the proposed hazardous waste permit was a "major Federal action" covered by NEPA, the plaintiffs argue that the Administrator violated this section by failing to prepare and circulate an environmental impact statement ("EIS") on the Emelle facility. (Plaintiffs' Complaint, pp. 18-21).^[3] In Count II, the plaintiffs allege that Defendant Thomas has deprived them of their protected interests of health and safety without due process in violation of the Fifth Amendment of the United States Constitution and that Defendant Leigh Pegues, in his official capacity as Director of the Alabama Department of Environmental Management, has deprived them of those interests in violation of the Fourteenth of their protected interests of health Amendment of the United States Constitution and 42 U.S.C. § 1983. They contend that the defendants violated those interests by denying them an adequate opportunity to participate in the process of permit consideration and by failing to remain objective in the consideration of the permits.

The plaintiffs originally asked this court to declare that the defendants had violated these statutory and constitutional mandates and to enjoin preliminarily and permanently the agencies from issuing the final permits on those grounds. Upon consideration of the plaintiffs' motion for a temporary restraining order, this court denied the plaintiffs' request for preliminary injunctive relief. Subsequently on May 27, 1987, the EPA issued its final hazardous waste permit.^[4]

The defendants, including Chem Waste, whom this court allowed to intervene, filed motions to dismiss this case in its entirety. At the hearing on the temporary restraining order, the court indicated that it would take these motions under submission. Upon consideration of the briefs filed by the parties and in accordance with the reasons set forth below, the defendants' motions to dismiss are hereby GRANTED with respect to both counts of the plaintiffs' complaint and the action is DISMISSED with prejudice.

II. Discussion

The defendants argue that the filing of these claims in this court is an attempt to circumvent the administrative and judicial procedures for appealing permit issuance decisions that were created by RCRA and the Alabama Environmental Management Act, Ala. Code § 22-22A-7(c) (Supp. 1986). Under RCRA, any interested person Under RCRA, any interested person who believes that a final federal hazardous waste permit was wrongfully issued by the EPA may petition the Administrator of that agency for review of that permit. 40 C.F.R. § 124.19(a). The Administrator may then either deny the petition or grant it and review the issuance decision on the merits. 40 C.F.R. § 124.19. The Administrator's action then constitutes final agency action which may be appealed to the Circuit Court of Appeals of the United States for the federal judicial district where the interested person resides or does business. 42 U.S.C. § 6976(b). There is also an administrative appeal process available for review of the state permits issued by ADEM. See Ala. Code § 22-22A-7(c) (Supp. 1986). Under that process, final ADEM administrative action is appealable to the Montgomery [18 ELR 20461] County circuit court or the circuit court where the aggrieved person resides or does business. Ala. Code § 22-22A-7(c)(6) (Supp. 1986). The defendants contend that, since the NEPA and due process claims essentially question the propriety of the permits proposed by the ADEM and the permit issued by the EPA, they must be pressed within the framework of RCRA and the Alabama Environmental Management Act. They have filed motions urging this court to dismiss this case presumably for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure or for failure to state a claim on which relief can be granted under Rule 12(b)(6).

The plaintiffs contend that this action does not directly involve review of the permit issuance decisions. They argue that the NEPA claim and the due process claims present separate issues which may properly be resolved by the district court.

A. The NEPA Claim

1. Does the court have subject matter jurisdiction over the NEPA claim?

Claims asserting violations of the National Environmental Policy Act are often properly heard by the United States district courts. See Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma, 426 U.S. 776, 783 [6 ELR 20528] (1976); Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231 [10 ELR 20235] (3d Cir. 1980), cert. denied sub nom. General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096; Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1184 [2 ELR 20726] (6th Cir. 1972). If it was not for the RCRA permit appeal process, this claim would undoubtedly be within the jurisdiction of this court. The existence of that process, however, compels the court to consider whether it is deprived of jurisdiction on the basis that the plaintiffs can and must have their NEPA claim adjudicated under the RCRA framework, since the NEPA claim is essentially being used to question the legality of the hazardous waste permit.

The court would not have subject matter jurisdiction if the challenged permit decision constituted final agency action presently reviewable in the Court of Appeals under § 6976(b) of RCRA. Where the Court of Appeals has been statutorily empowered to review certain agency action, the district court must yield to that review power and refuse to decide issues pertaining to the agency action. See City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979) (holding that an order issued by the Federal Aviation Administration and a construction permit issued by the Federal Communications Commission were reviewable only by the Court of Appeals in accordance with the Federal Aviation Act and the Communications Act of 1934, respectively); Frito-Lay Inc. v. Federal Trade Commission, 380 F.2d 8, 10 (5th Cir. 1967) ("Where Congress has provided an adequate procedure for judicial review of administrative action, that procedure must be followed.")^[5] In the instant case, this means that the district court should not entertain jurisdiction over EPA administrative action "in issuing, denying, modifying, or revoking" the hazardous waste permit as long as that action is reviewable in the court of appeals under RCRA. Under those circumstances, appellate court review is exclusive, even for the purpose of hearing allegations that the agency, in taking the action, failed to comply with NEPA. In City of Rochester, 603 F.2d at 936, the Court of Appeals for the District of Columbia Circuit held that the district court could not exercise concurrent jurisdiction simply because a violation of NEPA was alleged. It stated that "[t]he allegation may be raised directly in the court of appeals; and insofar as it may affect the lawfulness of a directly appealable order . . . it must be." City of Rochester, 603 F.2d at 936 (footnote omitted). See also City of Alexandria v. Helms, 728 F.2d 643, 646 (4th Cir. 1984) ("[W]hen review of an agency order is at issue . . . and when Congress has vested exclusive jurisdiction over that review in the Court of Appeals, NEPA does not provide independent grounds for district court jurisdiction."); City of West Chicago, Illinois v. United States Nuclear Regulatory Commission, 701 F.2d 632, 652 n.21 [13 ELR 20648] (7th Cir. 1983) (upholding the district court's dismissal of a challenge to a Nuclear Regulatory Commission order because Congress had vested exclusive jurisdiction to review the order in the court of appeals, in spite of the plaintiff's arguments that the district court could review the order for NEPA compliance).

The exclusivity of the jurisdiction of the court of appeals depends, however, on whether the statute has given that court review power over the particular action in question. For this reason, many of the cases in this area have turned on whether the agency action was a final order made exclusively reviewable in the Court of Appeals under the statutes considered in those cases or a non-final order falling outside the scope of such review. See e.g., City of Alexandria, 728 F.2d at 646; Air California v. United States Department of Transportation, 654 F.2d 616, 619-20 (9th Cir. 1981). According to the regulations promulgated under RCRA, the Court of Appeals does not have review authority unless the EPA's permit decision constitutes "final agency action." This occurs when the final RCRA permit is "issued or denied by EPA and agency review procedures are exhausted." 40 C.F.R. § 124.19(f)(1). Because those procedures have not been exhausted in this case, the Court of Appeals does not presently have the power to review the agency action. Thus, there is a viable argument that jurisdiction over the NEPA claim in this action properly lies in this court.

However, when exhaustion of available administrative remedies could result in a final agency order which would then be directly appealable to the Court of Appeals, there exists the further argument that the plaintiffs must pursue those remedies in an attempt to secure a final order. At least one court has indicated that the plaintiffs' failure to exhaust their administrative remedies prevents them from asserting their NEPA claim in the district courts. See City of West Chicago, Illinois, 701 F.2d at 652-53. In that case, the plaintiff's complaint partially consisted of four counts which the Seventh Circuit construed to be a claim that the Nuclear Regulatory Commission was improperly delaying the required environmental impact statements in violation of NEPA. Because the plaintiff had not petitioned the NRC to expedite the licensing proceeding and the EIS process, it had not exhausted the administrative remedies available under the regulations promulgated pursuant to the Atomic Energy Act. Noting that such exhaustion would have resulted in a "final order [which] would be appealable to [the Court of Appeals], rather than the district court," the Seventh Circuit held that the district court had properly dismissed the NEPA claim.

The plaintiffs have cited one appellate court decision which arguably counsels this court not to dismiss the case simply because exhaustion could result in a final order. That case is Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231 [10 ELR 20235] (3d Cir. 1980), cert. denied sub nom. General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096. There, the Third Circuit allowed a number of plaintiffs to assert a NEPA claim in district court, although judicial review of agency action was vested in the Court of Appeals under the Atomic Energy Act, because the agency action in that case did not constitute a final order reviewable under that statute. The court stated that "the judge-made rule of exhaustion of administrative remedies" should not bear upon the district court's subject matter jurisdiction. Susquehanna Valley Alliance, 619 F.2d at 245.

That case, however, was questioned by Justice Rehnquist in his dissent to the denial of certiorari. He pointed out that such a holding was contrary to "a long series of . . . cases heretofore regarded as settled law [which] require . . . exhaustion, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)." General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096 (1980). He noted that the claimed violation arose "out of the very activities which [were] subject to Commission regulatory control, and [that] considerations of judicial economy require[d] that [the claim] be resolved in the first instance by the Commission." General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. at 1099 n.2 (1980).

Although the courts are apparently split over whether exhaustion is required generally in this context, it is not required if such exhaustion would be futile. See Porter County Chapter of the Izaak Walton League v. Costle, 571 F.2d 359, 363 [8 ELR 20216] (7th Cir. 1978) (citing Davis, Administrative Law Treatise, § 20.07, at 99 (1958)). The plaintiffs argue that they should be allowed to bring their NEPA claim in this court since RCRA will not allow them to present the EIS issue under the administrative appeal process. They contend that appeals under that procedure are limited solely [18 ELR 20462] to the resolution of questions about whether a permit issuance was in compliance with the standards set forth in RCRA itself. The court agrees. The regulations promulgated under RCRA ensure that an aggrieved person can appeal certain permit conditions, but those conditions apparently do not include a requirement that the EPA issue a formal EIS.^[6] The court should not dismiss this case on the basis that the plaintiffs must exhaust their administrative remedies to achieve a final agency order where such exhaustion would not give the plaintiffs an opportunity to have their grievance addressed.^[7]

2. Does the NEPA claim constitute a claim on which relief can be granted?

Although the court finds that it has subject matter jurisdiction, the NEPA claim is due to be dismissed for failure to state a valid claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Under the specific terms of the statute, the National Environmental Policy Act applies to "all agencies of the Federal Government." 42 U.S.C. § 4332(2) (emphasis added). Nothing in the language of the statute explicitly or implicitly exempts the EPA from NEPA compliance. Given a literal reading, the EPA would be required to prepare a formal environmental impact statement on the Emelle facility, since its permitting of the expansion and continued operation must be considered a "major Federal [action] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

However, the courts have recognized an exemption for the EPA, where its adherence to "substantive and procedural standards ensure full and adequate consideration of environmental issues." Environmental Defense Fund, Inc. v. Environmental Protection Agency, 489 F.2d 1247, 1257 [4 ELR 20031] (D.C. Cir. 1973). In that event, "formal compliance with NEPA is not necessary, but functional compliance is sufficient." Environmental Defense Fund, Inc., 489 F.2d at 1257. The former Fifth Circuit recognized this exemption. See Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 207-08 [8 ELR 20445] (5th Cir. 1978) (holding that the Forest Service was not excused from NEPA compliance, because this exemption applies only to the environmental agencies).

There are numerous cases which hold that the EPA is not required to file an EIS, when its requirements under various organic statutes are "functionally equivalent." See e.g., Wyoming v. Hathaway, 525 F.2d 66, 70 [6 ELR 20169] (10th Cir. 1975), cert. denied, 426 U.S. 906 (1976) (Federal Insecticide, Fungicide and Rodenticide Act); Indiana & Michigan Electric Co. v. Environmental Protection Agency, 509 F.2d 839, 843 [5 ELR 20191] (7th Cir. 1975) (Clean Air Act); Environmental Defense Fund, Inc., 489 F.2d at 1257 (Federal Insecticide, Fungicide and Rodenticide Act); Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 384-85 [3 ELR 20642] (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974), subsequent appeal, 513 F.2d 506 [5 ELR 20341] (1975) (Clean Air Act); Maryland v. Train, 415 F. Supp. 116, 121 [6 ELR 20496] (D. Md. 1976) (Ocean Dumping Act). However, neither the parties nor independent research has revealed a case which discusses whether the EPA's mandate under RCRA will suffice as the "functional equivalent" of an EIS. Thus, the court is compelled to answer this question in the first instance. To do so, it must examine whether the EPA's action in issuing the hazardous waste permit is circumscribed by procedural and substantive safeguards in a manner which ensures that the basic purposes and policies behind the environmental impact statement will be carried out in the absence of a formal EIS. That is, does the RCRA permitting procedure ensure that the EPA will give sufficient consideration to the environmental issues that are involved in allowing Chem Waste to continue to operate and expand its Emelle facility?

The plaintiffs argue that the "functional equivalent" doctrine does not apply unless the EPA literally adheres to each of the five requirements set forth under NEPA's EIS requirement.^[8] They have misconstrued that doctrine. As long as the statutory and regulatory framework under RCRA "provides for orderly consideration of diverse environmental factors and . . . '[strikes] a workable balance between some of the advantages and disadvantages of full application of NEPA,'" the "functional equivalent" doctrine applies. Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 722, 750 [4 ELR 20397] (D.C. Cir. 1974) (citing Portland Cement Association, 486 F.2d at 386).

In this regard, the court notes that the RCRA framework provides an orderly and comprehensive mechanism to ensure that environmental factors are sufficiently taken into account. 40 C.F.R. Part 264 establishes certain minimum standards which define the acceptable management of hazardous wastes. 40 C.F.R. § 264.1. These substantive standards deal with various aspects, including general waste analysis (§ 264.13), inspection requirements (§ 264.15) and location (§ 264.18). Additionally, various subparts of Part 264 set standards for the use and management of containers (Subpart I), tanks (Subpart J), surface impoundments (Subpart K), waste piles (Subpart L), land treatment (Subpart M), landfills (Subpart N), and incinerators (Subpart O). The Administrator of the EPA shall issue a hazardous waste permit only upon a determination that the owner or operator of the hazardous waste facility has satisfactorily complied with these standards. 42 U.S.C. § 6925. Other regulations ensure that these substantive standards are satisfied.

For example, 40 C.F.R. Part 270 establishes the basic permitting requirements and standard permit conditions. 40 C.F.R. § 270.1(a)(2). Part 270 deals with the substance of the information contained in the permit applications filed by the owner or operator and the permits actually issued by the EPA. The application for a hazardous waste permit must include, among other things, general information about the facility, information about the chemical and physical analyses of the waste to be handled at the facility, and information about the procedures and structures to be used. 40 C.F.R. § 270.14(b). The application information requirements are designed so that the EPA can determine whether an applicant has complied with the substantive standards enunciated in Part 264. 40 C.F.R. § 270.14(a). Furthermore, the permits themselves must "include permit conditions necessary to achieve compliance with the Act and regulations, including each of the applicable requirements specified in 40 C.F.R. [Part] 264." 40 C.F.R. § 270.32(b)(1). 40 C.F.R. § 270.32(b)(1).

40 C.F.R. Part 124 establishes the procedural requirements for issuing the RCRA permits. Under those procedures, the EPA must first issue a proposed or draft permit. This draft permit must include theconditions mandated by Part 270. See generally 40 C.F.R. § 124.6. Then, that draft permit is subject to public comment (40 C.F.R. § 124.11) and public hearing (40 C.F.R. § 124.12). At the end of a prescribed public comment period, the EPA must decide whether a final permit shall be issued. 40 C.F.R. § 124.15. After the final permit decision, the conditions of the permit may be appealed with the agency. 40 C.F.R. § 124.19.

Finally, RCRA provides for judicial review of the EPA's final action in issuing a permit under section 6925. 42 U.S.C. § 6976(b). In view of this pervasive system for taking environmental factors into account, it is evident that the RCRA process should be considered the "functional equivalent" of NEPA's EIS requirement. Accordingly, the NEPA claim does not entitle the plaintiffs to relief and, therefore, it is DISMISSED on Rule 12(b)(6) grounds.

B. The Due Process Claims

The plaintiffs' due process claims against the EPA and the ADEM are based on allegations that the agencies were biased in their consideration of the environmental permits and that the agencies denied the plaintiffs a meaningful and adequate opportunity to participate in the process of permit consideration. Because the allegations attack non-final agency action, they are unripe for adjudication by this court. In Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), the Supreme Court held that adherence to the ripeness doctrine was required "to protect [an agency] from judicial inferference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."^[9]

[18 ELR 20463]

The plaintiffs' due process attacks focus on whether the consideration of the permits was improper. However, neither agency's consideration is final at this time. The procedures which remain under RCRA and the Alabama Environmental Management Act are part of the process by which an interested person may have the permit decisions scrutinized. To allow the plaintiffs to attack the agencies' permit consideration on grounds that such consideration is biasedor inadequate before the process of consideration is complete would be unnecessarily speculative.^[10]

Furthermore, even if the plaintiffs' due process claims were ripe for review, the court would be compelled to grant the defendants' motions on the basis that the claims do not state a due process violation as a matter of law. As pointed out earlier, the plaintiffs base their due process claims on two basic grounds: (1) that the EPA and the ADEM decisionmakers were biased and (2) that the procedure used by the agencies denied the plaintiffs an adequate opportunity to participate in the public process prescribed by the RCRA regulations. However, in view of the facts and further allegations made by the plaintiffs, the court finds that those grounds could not give rise to liability for a due process violation with respect to either defendant.

As to the first ground, the plaintiffs make several contentions. First, they argue that the ADEM has a general conflict of interest in that a portion of ADEM's regulatory budget comes from a fee on the disposal of hazardous wastes at the Emelle facility. They contend that the ADEM would naturally be predisposed to granting the state permits. They point out that the Supreme Court has held that even an indirect pecuniary interest on the part of a decisionmaker can be constitutionally impermissible. Ward v. Village of Monroeville, 409 U.S. 57, 59-60 (1972). In that case, the Court held that a trial for a traffic offense held before a mayor who was responsible for village finances and whose court generated a substantial portion of village funds through traffic fines was violative of due process. However, the underlying reasoning behind that holding -- that the mayor's situation might tempt him to lose his objectivity in order to bolster the town's coffers -- is not applicable in the case at bar. Even if granting Chem Waste the permit could indirectly benefit the ADEM, the decisionmakers here are simply too remote for a finding of constitutionally impermissible bias. There is no reason to believe that the ADEM officials responsible for issuing the draft permit or making a decision on the final permit would be biased simply because the ADEM's overall budget could be enhanced by the increase in the amount of waste deposited at Emelle. The court believes that this situation is more like the one in Dugan v. Ohio, 277 U.S. 61 (1928) -- a case distinguished by the Court in Ward. There, a mayor who served as a judge in imposing a fine on an individual for violation of a state liquor law was found not to have violated the individual's due process rights, even though he was one member of a commission of five who performed executive and legislative duties and he had some remote relationship to the finances and financial policies of the city.

The plaintiffs also contend that certain statements made by the defendants or their representatives before the public hearing on the proposed permits indicate unconstitutional bias, in that they show a predisposition to grant the permits. Even if those statements were made by the individual or individuals responsible for the decision to issue the permits, this does not indicate impermissible bias. As the Supreme Court held in Hortonville Joint School District v. Hortonville Education Association, 426 U.S. 482, 493 (1975), a decisionmaker is not "disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute."^[11]

With respect to the plaintiffs' second ground -- that the permitting procedure itself denied them an adequate opportunity to participate in the proceedings -- the plaintiffs contend that the agencies failed to provide to the public understandable information about the permits prior to the hearing and that the agencies failed to give adequate consideration to the comments made at the hearing. However, while the plaintiffs are entitled to a hearing and notice, they do not have a constitutional right to be provided with such information, nor do they have a right to have their comments taken in any particular manner.

Accordingly, the plaintiffs' due process claims asserted against both defendants are hereby DISMISSED with prejudice.

Order

The motion to dismiss the plaintiffs' complaint filed by the intervening defendant, Chemical Waste Management, Inc. and the motions to dismiss made orally by the defendants, Lee Thomas and Leigh Pegues, are hereby GRANTED in accordance with the accompanying memorandum of opinion. Accordingly, the abovereferenced action is DISMISSED with prejudice.

Costs are taxed against the plaintiffs.

Order

The plaintiffs' motion to alter the court's judgment under Rule 59 of the Federal Rules of Civil Procedure is hereby DENIED.

1. When Chem Waste purchased the facility in 1979, it was not required to possess either the federal or the state permit, because the statutes requiring them had not gone into effect. Since passage of those statutes, Chem Waste has been allowed to continue its operations on an interim status basis pending final approval of the permits.

2. The plaintiffs specifically allege that the hazardous waste permits will allow Chem Waste (1) to expand the facility's hazardous waste capacity to 13,000 acrefeet, (2) to construct a new incinerator for the burning of 50,000 tons per year of hazardous wastes, and (3) to store several million gallons of wastes in containers, tanks and an open air pond. They also allege that the air pollution permit will allow Chem Waste to burn the wastes in the new incinerator and that the water pollution permit will allow Chem Waste to discharge waste water into two nearby creeks.

3. The allegations in Count I are not directed against Leigh Pegues, the Administrator of the ADEM.

4. To the knowledge of this court, the ADEM has not finally issued the other three permits.

5. None of the cases which most directly discuss this issue involves the RCRA permit appeals procedure. Instead, they involve procedures created to handle review of permit decisions and agency orders under other statutes. However, the procedures in those statutes operate similarly to the one found in RCRA. As such, these cases are instructive.

6. The conditions which may be appealed are those conditions mandated by 40 C.F.R. part 270. See Pages 11-12 of this opinion.

7. The EPA insists that NEPA's EIS requirement does not apply to the EPA. This supports the plaintiffs' contention that administrative exhaustion is not necessary. The EPA's refusal to conform to NEPA is evidence that exhaustion would be futile.

8. Under NEPA, an EIS must include information about (1) the environmental impacts of the proposed action, (2) any adverse environmental effects which cannot be avoided should the proposal be implemented, (3) alternatives to the proposed action, (4) the relationship between the local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (5) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

9. A requirement that administrative action be final before district court review should not be confused with a requirement that the plaintiffs exhaust their administrative remedies. In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 192 (1985), the Supreme Court held that the two requirements were "conceptually distinct." It noted that "[w]hile the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judical procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate." Williamson Regional Planning Commission, 473 U.S. at 193.

As to the due process claims, the exhaustion requirement will not be considered. At least with respect to the § 1983 claim asserting violations of due process against the Administrator of the ADEM, there is no requirement for exhaustion of state administrative remedies.

10. This is particularly evident with respect to the ADEM, which has apparently done nothing more than issue the draft permits.

11. The plaintiffs' additional arguments alleging bias -- that certain individuals with state government ties, including the son-in-law of the former governor, had a financial interest in the Emelle facility and that the EPA had a general interest in utilizing the Emelle facility for disposal of hazardous waste from various Superfund sites -- are simply too remote to indicate that the agencies were not objective in their consideration of the permits.