formal opportunity to add the Port Authority, according to the Region, would not arise until the present permit expires in January 1995. Notwithstanding this background, there has not been any substantive change in the law throughout the relevant time periods. In particular, sections 270.1(c) and 270.10(b) of the regulations, 40 C.F.R. §§ 270.1(c) & 270.10(b), which provide the necessary authority for the Region to add landowners as co-permittees, have been on the books in their present form since April 1, 1983, see generally 48 Fed. Reg. 14228, et seq. (April 1, 1983): § 270.1(c) Owners and operators of hazardous waste § 270.10(b) Who applies? When a facility or activity As explained in Hawaiian Western Steel, et al., RCRA (3008) Appeal No. 88-2 (Administrator, November 17, 1988), these regulations were also in existence prior to April 1, 1983, in a slightly modified but substantively unchanged form. Therefore, both before and after the Region issued the permit on June 24, 1983, the applicable regulations consistently treated landowners as persons who, along with the operator of a hazardous waste facility, were required to have a permit. It therefore appears that in 1983 Region 5 and, perhaps, other Regions were mistaken or confused as to the exact nature of their permit-issuing responsibilities. Regardless of the situation on June 24, 1983, the critical legal requirements are no longer the subject of inconsistent application or interpretation within the Agency: landowners as well as tenantoperators are each required to have a permit.9 Provision for the owner's signature on the operator's permit application serves as a convenience, allowing one application-tantamount to a joint application-to be filed by the operator, rather than one each by the owner and the operator. Hawaiian Western Steel, supra at 8 ("Section 270.10(b) serves to streamline the permit process by relieving the 9 See notes 4 & 6, supra. owner of the responsibility for obtaining a separate permit when, and only when, the owner signs the operator's permit application."). It comes as no surprise that the Region saw WTI's permit modification request as an inviting and convenient opportunity to correct the record. Regrettably, the Agency's permit modification regulations, 40 C.F.R. §§ 270.41 & 42, do not make any provision for this type of permit revision-at least not without the express consent of WTI, as the named permittee. 10 The modification regulations are structured to allow the Agency to initiate permit modifications for cause, 40 C.F.R. § 270.41(a) & (b), and if the Agency's reasons for wanting to initiate a permit modification do not fit within one of the enumerated categories, as is the case here, the only available mechanism under the regulations for modifying the permit is a permittee-initiated permit modification, 40 C.F.R. §270.42. In its response to the petitions for review, the Region recognizes that its reasons for wanting to modify the permit do not fit within any of the Agency-initiated categories. It nevertheless argues that it may avail itself of one of the permittee-initiated categories, specifically the so-called Class 1 modification category, which encompasses very minor modifications, ones that permittees may generally implement without prior advance notice to either the Agency or the public. 11 See 40 C.F.R. § 270.42(a) and § 270.42 (Appendix I). We disagree. First, it is evident from the structure of the regulations, which places Agency-initiated permit modifications under a separate heading from permittee-initiated modifications, and simultaneously lists different criteria under each heading, that the Agency intended distinctions to be drawn between the two categories. There is no suggestion in these regulations that the Agency's powers to initiate modifications is inherently equal to or broader in scope than those of permittees. Rather, the powers of each are separately defined. In other words, in writing these regulations the Agency imposed a level of restraint on itself by defining the circumstances under which it, in contrast to permittees, could initiate permit modifications. Second, there is no indication that the revised regulations created the problem, as the Region would have us believe. 12 Insofar as we are able 10 See note 5, supra. 11It claims that "[i]n revising the regulations the Agency certainly did not intend to give the permittee more procedural flexibility than it gave itself." Region Response to Port Authority Petition, at 6. 12 In its response to the Port Authority's petition, the Region seeks to give the impression that the failure of the existing regulations to make specific provision for the Agency to initiate minor permit modifications on its own initiative is the result to determine, the Region would find itself confronting the same dilemma had the pre-revision regulations been in effect.13 Therefore, we see little light emanating from the Region's reading of the revised permit modification regulations; the regulations are simply not amenable to the task assigned them by the Region. As its final argument, the Region asserts that its proposal to add the Port Authority to the permit is authorized by § 3005(c)(3) of RCRA, 42 U.S.C.A. §6925(c)(3). It submits that this section has been "construed broadly" to give the Agency "omnibus authority * * * to change permits to protect human health and the environment," quoting the following language from the section: Nothing in this subsection shall preclude the Admin- Region Response to Port Authority Petition, at 12–13. There are several problems with the Region's reliance on this language. First, as a matter of clarification and terminology, this section of the Act contains several components, but only the last sentence quoted above is known as the Agency's "omnibus" authority. While the omnibus provision has been construed broadly, no comparable characterization attaches to the first sentence quoted by the Region. Second, the language quoted by the Region comes after the lead sentence of § 3005(c)(3), which states that permits “shall be [issued] for a fixed term, not to exceed 10 years." Therefore, with the lead sentence providing context, it is evident that the purpose of the permit modification sentence is to make it clear that there is no statutory bar to modifying a permit, even though § 3005(c)(3) itself says that permits shall be for a fixed term. That does not mean, however, that the Agency, through its power to issue regulations, cannot place limitations upon itself to initiate permit modifications. of an oversight in revising the regulations in 1988. Region Response to Port Authority Petition, at 6. 13 Under those regulations the Region would have faced a nearly identical array of categories in which to find a niche for its proposed permit modification, and as now, it would have confronted an equally uninviting selection. Compare 40 C.F.R. §270.41(a) & (b) (1984) with 40 C.F.R. §270.41(a) & (b) (1991). Also, as now, the Region would first have to obtain the consent of the permittee before proposing this so-called "minor" permit modification. See 40 C.F.R. § 270.42 (1984). As discussed previously, the Agency has done that in this instance by promulgating 40 C.F.R. §270.41(a) & (b). Therefore, the Agency may not invoke §3005(c)(3) to bypass these regulations, for it is axiomatic that the Agency must follow its own regulations. Service v. Dulles, 354 U.S. 363, 372 (1957). Third, even though the omnibus clause may be construed in a way that has broad application, it must be invoked contemporaneously with the action proposed by the permit issuer and it must be supported by appropriate findings. As we recently stated, the permit-issuing Region "may not invoke its omnibus authority unless the record contains a properly supported finding that an exercise of that authority is necessary to protect human health or the environment." Sandoz Pharmaceuticals Corporation, RCRA Appeal No. 91-14, at 7 (EAB July 9, 1992). There is no indication from the record on appeal that the Region has satisfied these requirements. It appears that invoking §3005(c)(3) as legal authority for adding the Port Authority to the permit is nothing more than a post hoc decision by the Region in response to the Port Authority's appeal. 14 Finally, the Region's rationale for invoking § 3005(c)(3) is specious. Counsel for the Region explains the rationale by asserting, on appeal, that human health and the environment will be better protected by adding the Port Authority to the permit since it "reminds the Port Authority of its responsibility and [thus] place[s] a further check on the facility operator, WTI." Region Response to Port Authority Petition, at 13. The effect on the permit operator from adding the Port Authority to the permit is, in our judgment, speculative at best, thus making the Region's rationale far too tenuous to support a finding of necessity under the omnibus provision. Accordingly, it is our conclusion that the Region's rationale lacks a sufficiently proximate relationship to protection of health and the environment to justify the proposed modification. Therefore, for the foregoing reasons, the Region may not rely on the § 3005(c)(3) in this instance to modify the permit. Accordingly, we remand the matter to the Region to withdraw its proposal to modify the permit by adding the Port Authority's name as co-permittee. Our conclusion does not mean that the Region is powerless to reach its objective of adding the Port Authority's name to the permit. First, it is conceivable that WTI, if asked, may give its consent to the permit revision, thus enabling the modification to proceed as a permittee-initiated modification. In that event, to address any 14 A letter from the Region to the Port Authority's counsel, dated January 13, 1992, offers various statutory and regulatory reasons as authority for adding the Port Authority to the permit but makes no mention of §3005(c)(3) or the omnibus provision. See Letter from Nancy-Ellen Zusman, Assistant Regional Counsel, U.S. EPA, Region 5, to J. Michael Kapp, dated January 13, 1992. lingering concern about the legal effect of adding the name to the permit, it may also be necessary for the Port Authority to ratify the modification-for example, by signing the permit application. Second, if WTI does not consent to the permit revision, or if the Port Authority does not ratify the modification, the Region may also bring an enforcement action against the Port Authority under § 3005 of the Resource Conservation and Recovery Act (RCRA) by issuing a compliance order directing the Port Authority to sign the permit application (or file its own application).15 Other options may also exist but the choice, of course, lies with the Region, and we make no specific recommendation in that regard. CITY OF PITTSBURGH APPEAL A. The City of Pittsburgh has also filed a petition for review of the co-permittee issue but approaches it from a somewhat different perspective than either the Region or the Port Authority. Although the City agrees with the facts as described above, and with the law insofar as it requires the addition of landowners to permits, it claims that the existing permit is invalid and therefore the addition of the Port Authority to the permit by means of an attempted permit modification at this time would be impermissible. The City claims that by omitting the Port Authority from the permit when it was originally issued the Region has violated the Agency's own regulations. According to the City's reasoning, the permit was invalid when it was issued, and therefore it would be illegal for the Region to try to breathe life into it by means of a permit modification nearly nine years later. The City nevertheless does not make any specific proposals on how the Agency should respond to this set of circumstances even if we were to agree with the City's negative assessment of the permit's validity, which we do not. Presumably the City wants the Region to withdraw its proposal to add the Port Authority to the permit. Our directions to the Region earlier in this decision are fully responsive to this aspect of the City's petition. Beyond that we enter the realm of speculation. It is possible, for example, that the City also 15 If the Port Authority does not sign the application, Hawaiian Western Steel, supra at 9, makes it clear that the Port Authority must file its own separate application. Also, regardless of whether the Port Authority signs or files an application, "EPA considers the owner (owners) and operators of a facility jointly and severally responsible for carrying out the requirements of the regulations." 45 Fed. Reg. 33,169 (May 19, 1980); accord Arrcom, Inc., supra note 6 (citing the quoted language). |