ELR Citation: ELR 21214
No(s). 93-1860 (D.C. Cir. Jun 16, 1995)

The court upholds against a facial due process challenge the U.S. Environmental Protection Agency's (EPA's) 1993 off-site rule, promulgated under §121(d)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act, which delineates the procedures EPA uses to classify Resource Conservation and Recovery Act facilities as "unacceptable" to contract with EPA, the state, or a private party to manage wastes removed from Superfund sites. The court first holds that two hazardous waste management companies failed to make a proper facial challenge to the off-site rule because they did not demonstrate that no circumstances exist under which the rule would be valid. The court next holds that the rule suffers no procedural infirmities when a facility does not dispute EPA's initial finding of unacceptability. Under these circumstances, the procedural safeguards that the companies allege are lacking become unnecessary because the facility is not challenging the finding in any respect. The court notes that if they are to succeed, the companies must challenge the rule as applied to them. The court also notes that the dismissal of the companies' challenge in no way reflects approval of the procedural scheme at issue.

[Related decisions are published at 18 ELR 20307 and 20315. Briefs in this action are digested at ELR PEND.LIT. 66389.]

Counsel for Petitioners
Michael W. Steinberg
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

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

Before BUCKLEY, WILLIAMS and SENTELLE, Circuit Judges.