IN THE MATTER OF CIBA-GEIGY CORPORATION AND HERCULES, INC. RCRA Appeal No. 91-28 ORDER DENYING REVIEW Decided April 7, 1992 Syllabus The Environmental Protection Agency, Region II, issued a permit to Petitioners, CIBA-GEIGY Corp. and Hercules, Inc., under the 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act of 1976 (RCRA). Petitioners seek review on two grounds. First Petitioners contend that the HSWA permit is defective because it fails to provide for its automatic termination upon authorization of New York State's HSWA program. Second, Petitioners argue that because the HSWA permit contains similar or identical requirements to those in the State portion of the RCRA permit, the Region abused its discretion in issuing the permit. Held: First, nothing in RCRA or its implementing regulations requires that a HSWA permit specifically provide for its termination upon State authorization. Matters relating to the administration of federally-issued permits should be handled in a Memorandum of Agreement between the Agency and the State. Second, issuance of the HSWA permit was consistent with RCRA and its implementing regulations, and Petitioners have failed to establish any abuse of discretion. Review is therefore denied on both issues. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Opinion by Judge Reich: CIBA-GEIGY Corporation and Hercules, Inc. (Petitioners) seek review of the federal portion of a permit issued to Petitioners by Region II under the 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act of 1976 (RCRA).1 Specifically, Petitioners contend that the Region's failure 1The non-HSWA portion of the permit was issued by New York, an authorized State under RCRA § 3006(b), 42 U.S.C. § 6926(b). New York State is seeking authorization to operate its HSWA program in lieu of the Federal program. to include a permit provision providing for the automatic termination of the federal HSWA permit upon authorization of New York State's HSWA program amounts to an error of law and renders the permit defective. Petition for Review at 15-16. Petitioners also argue that because the permit issued by Region II contains many of the same corrective action requirements as those required under the State portion of the RCRA permit,2 it was an abuse of discretion for the Region to issue a separate corrective action permit. Id. at 16. As requested by the Agency's Judicial Officer,3 Region II submitted relevant portions of the administrative record and a response to the petition. For the reasons set forth below, we conclude that Petitioners have failed to show that review of the permit is warranted under 40 C.F.R. § 124.19, and therefore review is denied. Under the rules governing this proceeding, a RCRA permit determination ordinarily will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 C.F.R. § 124.19; 45 Fed. Reg. 33,412 (May 19, 1980). The preamble to § 124.19 states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level ***." Id. The burden of demonstrating that review is warranted is on the petitioner. See 40 C.F.R. § 124.19. Petitioners have not met this burden. Although Petitioners are correct that, upon authorization of the State HSWA program, New York State may administer the State HSWA program in lieu of the Federal HSWA program,4 nothing in RCRA or its implementing regulations indicates that the federal permit must provide for its automatic termination upon State authorization. The regulations indicate that matters relating to the administration of federally-issued permits are to be handled by Memorandum of Agreement between the Agency and the State.5 Review is therefore denied on this issue. 2 Although New York State has not been authorized to administer the HSWA program, the State portion of the RCRA permit includes corrective action requirements. 3 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. 57 Fed. Reg. 5321 (Feb. 13, 1992). 4 RCRA § 3006(g), 42 U.S.C. § 6926(g). 540 C.F.R. §271.8(b)(6) provides, in part: When existing permits are transferred from EPA to the State Petitioners' argument that the Region abused its discretion in issuing the HSWA portion of the RCRA permit is also rejected. Petitioners contend that, because the State portion of the permit includes corrective action requirements under State law, the Region should not have issued the federal HSWA portion of the permit, and that issuance of the federal portion will lead to unnecessary duplication. We disagree. Although some duplication between the federal and State portions of a permit may result where, as here, a State chooses to impose corrective action requirements prior to receiving HSWA authorization, the Region does not abuse its discretion by issuing the HSWA portion of the permit. On the contrary, the statutory language indicates that a RCRA permit must contain corrective action requirements, and that the Agency must administer the HSWA program unless the State program is finally authorized. Thus, the Region cannot waive its statutory obligation to administer the HSWA program prior to State authorization. Because issuance of the HSWA permit was consistent with RCRA and its implementing regulations and because Petitioners have failed to establish any abuse of discretion, review is denied. So ordered. provisions specifying a procedure for transferring the administra- * See RCRA § 3004(u), 42 U.S.C. § 6924(u). That section provides, in part: a permit issued after November 8, 1984, by the Administrator 7See RCRA §3006(g)(1), 42 U.S.C. §6926(g)(1) (“The Administrator shall carry out [the HSWA] requirement[s] directly in each State unless the State program is finally authorized * * with respect to such requirement[s]."). IN THE MATTER OF ATLAS ENVIRONMENTAL RCRA Appeal No. 91-18 ORDER DENYING REVIEW Decided April 22, 1992 Syllabus Petitioners have filed a petition for review challenging U.S. EPA Region VII's decision to issue the federal portion of a permit under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA). The permit is for a reactive waste incinerator (for disposal of explosives) and its associated storage/feed handling building in Joplin, Missouri. The petition focuses on the operating requirements for the storage/ feed handling building, which is regulated as a Miscellaneous Unit ("MU”) under Subpart X of 40 CFR Part 264. The petition asks that review be granted with respect to: (1) a typographical error in the federal portion of the permit, which references the wrong section of the state portion of the permit; (2) the alleged failure by the Region to require accurate characterization of the site's hydrologic and geologic conditions; (3) the alleged failure of the Region to require an accurate description of existing groundwater quality at the site; (4) the alleged failure of the application and the permit to acknowledge that the MU is located on property occupied by the single largest air polluter in the area, and the alleged failure of the Region to consider the impact of the facility on air quality; (5) the location of the MU near the area where waste load confirmation and analysis will take place; (6) the imminent danger to human health posed by incineration of nitroglycerin, as evidenced by the fact that the trial burn, for safety reasons, will burn only a small percentage of the explosive material that will be burned once the facility is full operational; (7) the failure of the permit to require trial runs of activities to be conducted inside the MU; and (8) “policy considerations" such as the experimental nature of the facility, the Region's lack of experience in permitting this type of facility, the permittees' lack of experience in operating this type of facility, the permittees' alleged "abysmal" environmental record, and the imminent hazard of the facility. Held: Review is denied as to all issues raised in the petition. With respect to the typographical error, review is denied because the Region has represented that the error will be corrected through a modification of the permit. With respect to the other issues, review is denied because Petitioners have not identified any clearly erroneous factual or legal conclusions or any important policy matters that should be reviewed. Before L. Environmental Appeals Judges Ronald McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Opinion by Judge Reich: Four citizens, Eileen Nichols, Brenda White, Linda Poe, and Jim Mueller, have filed a petition for review challenging U.S. EPA Region VII's decision to issue the federal portion of a permit under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §6925, to Atlas Powder Company (Atlas), as owner, and Atlas Environmental Services, Inc. (AES), as operator." The permit is for a reactive waste incinerator (for disposal of explosives) and its associated storage/feed handling building in Joplin, Missouri. The federal portion of the permit (Part II) imposes corrective action requirements for the entire facility under the 1984 Hazardous and Solid Waste Amendments (HSWA) and imposes operating requirements for the storage/feed handling building under Subpart X of 40 CFR Part 264.2 The non-federal portion of the permit (Part I) was issued by the Missouri Department of Natural Resources (MDNR) and contains operating requirements for the incinerator. At the request of the Agency's Judicial Officer, the Region filed a response to the petition for review.3 Under the rules that govern this proceeding, a RCRA permit ordinarily will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). The preamble to the Federal Register notice in which Section 124.19 was promulgated states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level ***." Id. The burden of demonstrating that review is warranted is on the petitioners. The petitioners in this case have not carried that burden. 1 AES is a wholly-owned subsidiary of Atlas. 2 While Missouri is authorized to issue RCRA permits in lieu of the Agency, it is not authorized to impose standards under Subpart X because it has not revised its RCRA program to include such standards. See 52 Fed. Reg. 46946, 46961-62 (December 10, 1987)(State that is otherwise authorized to issue RCRA permits in lieu of the Agency may not impose Subpart X requirements until it revises its RCRA program to include such requirements). 3 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished, and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992). |