ELR Citation: ELR 20107
No(s). 88-7523 (11th Cir. Aug 23, 1990)

The court holds that the Environmental Protection Agency's (EPA's) procedures in issuing a permit under the Resource Conservation and Recovery Act (RCRA) for the nation's largest hazardous waste management facility in Emelle, Alabama, were sufficient to exempt EPA from performing an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The court first holds that Alabama is not estopped from pursuing a claim under NEPA. Although the state is raising an issue identical to that decided by a district court and a state agency was a defendant in that action, the state agency was not involved in litigating this particular NEPA issue. The court next holds that RCRA's permitting procedures are the functional equivalent of NEPA analysis and thus EPA did not have to comply with NEPA in considering the RCRA permit application. Although RCRA does not require EPA to consider every point it would have to consider in preparing an EIS, RCRA is the functional equivalent of NEPA. The court holds that EPA did not violate its own procedural requirements governing public participation in issuing the permit. Finally, the court holds that EPA's waiver of a groundwater monitoring requirements was not arbitrary and capricious.

Counsel for Petitioners
Craig Kneisel
Office of Attorney General
StateHouse, 11 S. Union St., Montgomery AL 36130
(205) 242-7406

Counsel for Respondents
W. Christian Schumann
Environment and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Before EDMONDSON, Circuit Judge, HILL^* and HENDERSON, Senior Circuit Judges.