FACILITY 19, 1991, be reopened. The facility, located in Kings County, California, is a hazardous waste treatment, storage and disposal facility operating under a Resource Conservation and Recovery Act (RCRA) permit first issued in March of 1988. The Kettleman Hills facility has been the site of considerable controversy, with substantial concerns being raised by and on behalf of its primarily Latino community. Petitioner, El Pueblo para el Aire y Agua Limpio, argues that these permit modification decisions were tainted because James C. Breitlow, former Chief of the Permits Section, Hazardous Waste Management Division for Region IX, was discussing potential employment with CWM at the same time the modifications were being considered. Thus, according to Petitioner, the permit modifications should be stayed pending a full investigation and declared void if any laws were violated. Region IX submitted portions of the administrative record and a response to the petition. Attached to that response were declarations of various persons involved either in Mr. Breitlow's discussions with CWM or with the processing of CWM's permit modifications. The Petitioner provided comments on the Region's response on December 19, 1991. 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 petitioner. For the reasons set forth below, we conclude that Petitioner has failed to show that review of the permit modifications is warranted under 40 C.F.R. § 124.19, and therefore review is denied. A. Permit Modifications I. BACKGROUND On July 31, 1990, CWM requested a class 2 modification to its existing RCRA operating permit that would allow it to construct a new landfill (known as landfill B-18) at its Kettleman Hills facility. For reasons of administrative efficiency, this request was incorporated into another proposed modification (modification #3) which contained additional changes to the RCRA permit including, among other things, the approval of a closure plan for another eleven landfills and three surface impoundments. Under an agreement with the State of California,1 the California Department of Health Services (DHS) 2 conducted the primary technical review of the entire modification package, conducted public hearings, reviewed public comments, and prepared the requisite permit decision documents for EPA approval. DHS transmitted the completed modification package to Region IX with a cover letter addressed to Mr. Breitlow on February 20, 1991, and recommended its approval. On March 19, 1991, the Region issued a part of the modification package addressing only the class 2 modification request (authorizing completion of the B-18 landfill). At the informal request of the United States Fish and Wildlife Service (FWS), the Region delayed final approval of the balance of the permit modification pending the release of an FWS biological opinion addressing potential harm to endangered species.3 This modification was issued on June 5, 1991, and is the subject of this appeal. Petitioner further requests that EPA reopen all CWM permits and permit modifications granted by the Region during the time in which Mr. Breitlow was discussing possible employment with CWM. B. Mr. Breitlow's Contacts With CWM From December 1986 to May 1991, Mr. Breitlow was employed by Region IX as Chief of the Permits Section, Hazardous Waste Management Division. On February 21, 1991, Mr. Breitlow received a telephone call from Corin Hylton, an executive recruiter employed by Northern California Management Recruiters in San Francisco, California. Mr. Hylton asked Mr. Breitlow if he was interested in employment in the private sector. Mr. Breitlow indicated that he might be interested in working for companies engaged in environmental work such as Chevron, Dow, DuPont, or CWM. Declaration of James C. Breitlow at ¶8. Mr. Breitlow agreed to send Mr. Hylton a copy of his resume and gave Mr. Hylton permission to send "blind" copies (without any identifying personal information) to companies such as the ones Mr. Breitlow described. 1 California is not an authorized State under RCRA § 3006(b), 42 U.S.C. §6926(b), but receives RCRA grant funds to assist EPA in the technical analysis and development of RCRA permits and modifications. 2 DHS has recently reorganized as the Department of Toxic Substances Control, California Environmental Protection Agency. 3 FWS's final biological opinion was issued on May 2, 1991. FACILITY On either February 25 or 26, 1991, Mr. Hylton contacted CWM on behalf of Mr. Breitlow, although he did not identify his client as Mr. Breitlow at that time. (Mr. Hylton's Declaration is ambiguous as to the precise date of this first contact with CWM.) On March 8, 1991, after receiving expressions of interest from CWM, Mr. Hylton identified Mr. Breitlow as his client and sent CWM a complete copy of Mr. Breitlow's resume. Mr. Breitlow was not aware that he had been identified to CWM until March 15, 1991. Breitlow Declaration at ¶9. On that date, Mr. Hylton informed Mr. Breitlow of CWM's interest and that an interview had been scheduled for March 22, 1991. Mr. Breitlow immediately informed his supervisor, Michael Feeley, that he was recusing himself from all decisions relating to CWM and submitted a signed statement to that effect. Declaration of Michael Feeley in Support of Region IX's Response To Petition for Review at ¶3; Breitlow Declaration at ¶ 10. Mr. Breitlow also informed Fredrick Moore, an environmental engineer in the Permits Section, who was responsible for matters concerning CWM's Kettleman Hills facility. Mr. Breitlow interviewed with CWM on March 22 & 26, 1991. On April 23, Mr. Breitlow informed his supervisor that he had accepted a position with CWM as Environmental Manager for the Western ENRAC Division. Mr. Breitlow's last day with EPA was May 12, 1991. He began working for CWM on May 13, 1991. II. DISCUSSION A. June 5, 1991 Modification Petitioner contends that Mr. Breitlow violated "codes of ethical conduct for government employees" 4 and suggests that he may be 4 EPA's ethical standards of conduct for employees provide, in part: Employees may not use their official positions for private gain or act in such a manner that creates the reasonable appearance of doing so. Employees therefore must not: (d) Take any action, whether specifically prohibited or not, (2) Giving preferential treatment to any organization or person; (4) Losing independence or impartiality of action; Continued subject to criminal penalties under 18 U.S.C. § 208(a).5 Today's decision addresses only the alleged ethical violations.6 Under the Agency's ethical standards, an employee's duty to refrain from participating in matters affecting a prospective employer arises as soon as the employee, either directly or through an intermediary, makes contact with that employer. See EPA Ethics Advisory 87-7 (July 17, 1987) Attachment at 2. (This would not include the mass distribution of resumes without additional communications. Id.) In the present case, Mr. Breitlow specifically mentioned CWM as one of the companies in which he was interested and shortly thereafter Mr. Hylton contacted CWM on Mr. Breitlow's behalf. Given Mr. Breitlow's expressed preferences, it was reasonable for him to assume that CWM would receive a copy of his blind resume. Mr. Breitlow was also well aware that his Section was processing the CWM permit modification. Under a strict reading of the ethical guidelines, Mr. Breitlow should have recused himself at the time his resume was sent to CWM (February 25 or 26, 1991) rather than waiting or (5) Making a Government decision outside of official channels; (6) Adversely affecting public confidence in the integrity of Government or EPA. 40 C.F.R. §3.103. 5 That section provides, in part: [W]hoever, being an officer or employee of the executive branch Shall be fined not more than $10,000, or imprisoned not more "Because the Agency's ethical standards require an employee to avoid actions which might result in or create the "reasonable appearance" of impropriety, they impose a much broader standard of disqualification than that imposed by 18 U.S.C. § 208. As to any alleged violation of § 208, we note that the Region's response to the petition for review asserts that the United States Attorney's Office concluded, after investigation, that prosecution was not warranted. We did not attempt to confirm this assertion in light of privacy considerations and since we did not rely upon it in reaching our decision. Region IX's Response to Petition for Review at 2. FACILITY until March 15, 1991.7 After a thorough review of the record on appeal, however, we conclude that the eighteen or nineteen day delay in recusal, combined with Mr. Breitlow's minimal participation in the matter, does not warrant review of the June 5, 1991, permit modification. The declarations submitted with the Region's Response to Petition for Review support a determination that Mr. Breitlow did not substantially participate in the permit review process while it was under consideration by the state. It was DHS that prepared the initial permit modification package, conducted public hearings, and prepared the appropriate documentation. Although there was consultation with EPA, at no time did Mr. Breitlow "review, advise or express any concern at all concerning the technical contents or preparation of the permit modification package." Declaration of Fredrick Moore in Support of Region IX's Response to Petition for Review at ¶5; see also Breitlow Declaration at ¶¶7, 15. Rather, it was Fredrick Moore who consulted with DHS on development of the permit modification package. Declaration of William Veile in Support of Region IX's Response to Petition for Review; Declaration of James Pappas in Support of Region IX's Response to Petition for Review. The submission by DHS to Region IX, reflecting the culmination of the state's review, preceded even the first contact between Mr. Breitlow and Mr. Hylton and, as such, could not have been affected by the subsequent course of events. The documentation submitted by Region IX indicates that the only decision concerning CWM's permit modification in which Mr. Breitlow participated was the decision to delay issuance of modification #3 until the FWS completed its final biological opinion. Mr. Breitlow concurred in that decision on or about February 26, 1991. Moore Declaration at ¶5. This decision was adverse to CWM's interests at the time in that it delayed the ultimate approval of this modification, which had been requested by CWM itself. Mr. Breitlow did not participate in any other substantive decision regarding the modification.8 Id. at ¶¶5-7; Feeley Declaration ¶¶4-5. We therefore 7 This is true even though CWM initially received a copy of Mr. Breitlow's resume which Mr. Hylton characterized as "blind". The ethical guidelines indicate that the obligation of recusal becomes effective when an employee makes contact with a particular person or organization either directly or through an intermediary. This situation occurs once that contact is made on behalf of a specific individual, whether or not the potential employer is initially aware of the applicant's name. 8 The record on appeal contains two documents on which Mr. Breitlow's name appears. These are the official file copies of the Final Decision on the March 19, Continued |