ELR Citation: ELR 21185
No(s). 91-1109 (D.C. Cir. Jun 12, 1992)

The court holds that the Equal Access to Justice Act (EAJA) does not entitle an environmental group to recover attorney fees incurred when it intervened in a proceeding initiated by the U.S. Environmental Protection Agency (EPA) to withdraw North Carolina's authorization to administer its hazardous waste program under §3006(e) of the Resource Conservation and Recovery Act (RCRA). The proceeding is not an adversary adjudication, because the EAJA specifies that a proceeding is an adverse adjudication only if Congress intended that the proceeding be subject to §554 of the Administrative Procedure Act (APA). A §554 hearing has as its primary purpose the determination of adjudicative facts, while a withdrawal proceeding involves legislative facts. Moreover, inclusion of a §554 hearing requirement in RCRA §7001, compared with the omission of such a hearing in §3006(e), reveals that Congress tailored hearing requirements to the issues likely to arise in each proceeding. The court notes that EPA's own regulations delineate the proceedings subject to the EAJA, and RCRA withdrawal proceedings are not so delineated. Finally, it is irrelevant that the withdrawal proceedings may be the functional equivalent of an APA §554 hearing.

Counsel for Petitioner
Rena I. Steinzor
Spiegel & McDiarmid
1350 New York Ave. NW, Washington DC 20005
(202) 879-4000

Counsel for Respondents
Stephen M. Johnson
Environmental and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000

Before WALD, EDWARDS, and HENDERSON, Circuit Judges.