IN THE MATTER OF CARGILL, INC. RCRA Appeal No. 92-14 ORDER DENYING REVIEW Decided May 18, 1992 Syllabus A citizen has filed a petition for review challenging the decision of U.S. EPA Region IX to issue a permit under Section 3005 of the Resource Conservation and Recovery Act to Cargill, Inc. for its hazardous waste incinerator in Lynwood, California. Petitioner argues that the Region did not comply with certain procedures of California law and thus failed to give the citizens of Lynwood an adequate opportunity to participate in the decision-making process that led to the issuance of the final permit. Held: Review is denied because the issue was not raised during the public comment period or at the public hearing, even though it was reasonably ascertainable at that time. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Per Curiam: Before us is a petition for review filed by the Reverend Charles Lenard Floyd challenging the decision of U.S EPA Region IX to issue a permit under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §6925, to Cargill, Inc. for its hazardous waste incinerator in Lynwood, California. The incinerator is used to destroy liquid and gaseous wastes from Cargill's synthetic resin manufacturing plant. The facility has been operating under interim status. As requested by the Environmental Appeals Board, Region IX has filed a response to the petition for review. 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 promul gated 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. The petitioner in this case has not carried that burden. The gist of the petition is that Region IX did not give the citizens of Lynwood an adequate opportunity to participate in the decisionmaking process that led to the issuance of the final permit. Petitioner charges that the Region's alleged failure to provide such an opportunity violated California Government Code §54950, which requires meetings of "the legislative body of a local agency" to be "open and public." The Region responds that this issue has not been preserved for review, because petitioner failed to raise it during the public comment period or at the public hearing, even though it was reasonably ascertainable at that time. See 40 CFR §§ 124.13 and 124.19(a). The Region also notes that California Government Code § 54958 does not apply to meetings conducted by the Region, and petitioner has not cited any Federal permitting procedures that were violated by the Region. Finally, the Region's response details the extensive notice procedures carried out by the Region. We conclude that the Region afforded the public every opportunity to participate provided for under Federal permitting procedures. We agree with the Region that this issue has not been preserved for review, since any alleged defect in the public hearing procedures was reasonably ascertainable at the time of the public comment period. Accordingly, since this issue has not been preserved for review, review is hereby denied. So ordered. IN THE MATTER OF STAR-KIST CARIBE, INC. NPDES Appeal No. 88-5 ORDER DENYING MODIFICATION REQUEST Decided May 26, 1992 Syllabus This matter concerns a petition by EPA Region II for a substantial modification to an April 16, 1990 decision of the Administrator in this case. The Administrator's decision denied a request of the petitioner to overturn portions of an earlier decision by the Agency's Chief Judicial Officer. The Administrator's decision held, inter alia, that [T]he Clean Water Act does not authorize EPA to establish sched- Petitioner objected to a statement in the decision, where the Administrator said, "If a State does not provide for compliance schedules in its water quality standards, it may be assumed that the omission was deliberate." Petitioner asked that the Administrator's decision be modified "so as not to require EPA to interpret a state's regulator's silence on schedules of compliance as a deliberate statement that none are allowed, unless there is some other indicator of such state intent." Held: The petition is denied. Petitioner failed to justify the requested modification request, which would allow EPA to establish schedules of compliance as if the Administrator's decision had never existed. The remark in the Administrator's decision that the petitioner finds objectionable is a legal presumption, not a factual observation, and is drawn from a comprehensive analysis of the entire statutory scheme. L. Before Environmental Appeals Judges Ronald McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Opinion of the Board by Judge McCallum: This matter concerns a petition by EPA Region II1 for a substantial modification to the Administrator's April 16, 1990 decision in this matter.2 The Administrator's decision denied a request by the petitioner to overturn portions of an earlier decision by the Agency's Chief Judicial Officer ("CJO").3 By separate order dated September 4, 1990, the Administrator's decision was stayed pending a ruling on EPA Region II's petition. For the reasons stated below, the petition is denied and the stay is lifted. In view of the nature of our ruling (a denial of a modification request) and the fact that the Administrator's decision and the CJO's decision deal comprehensively with the subject of schedules of compliance as presented in this controversy, there will be no attempt here to provide a general overview of the subject or to explain how or why today's ruling has come up for consideration. Rather, matters will be addressed as deemed necessary to dispose of the petition. Accordingly, the reader is advised to consult the petition and the previous decisions for a complete understanding of the context of the instant ruling. The Administrator's decision holds, inter alia, that: [T]he Clean Water Act does not authorize EPA to 1 See "Petition for Modification of Order on Petition for Reconsideration," dated August 13, 1990. The petition is signed by representatives of the Agency's Office of General Counsel and EPA Region II. 2 See "Order on Petition for Reconsideration," dated April 16, 1990 (referred to either as "Administrator's Decision" or "Administrator's decision"). 3 See "Order Denying Petition for Review," dated March 8, 1989 (the "CJO's decision"). Agency's powers in this respect *** are no greater than the States'. Order on Petition for Reconsideration at 5. The chief objection to this holding, as stated in the petition, is a single remark in the decision, where the Administrator said, "If a State does not provide for compliance schedules in its water quality standards, it may be assumed that the omission was deliberate." Administrator's Decision at 17. Petitioner argues that the assumption is unwarranted, is unnecessary to ensure that States are not forced to accept unwanted EPA-imposed schedules of compliance, and leads to irrational results when considered in conjunction with section 304(1) of the Act (which provides for individual control strategies (permits) for point sources located on certain listed toxic-contaminated stream segments). Petitioner suggests that the Administrator's decision should be modified "so as not to require EPA to interpret a state's regulations' silence on schedules of compliance as a deliberate statement that none are allowed, unless there is some other indication of such state intent." Petition at 6. The practical effect of granting the modification would be to allow EPA to establish schedules of compliance as if the Administrator's decision had never existed. In other words, the modification would nullify the decision. Petitioner's arguments in support of modification are not compelling. The remark in the Administrator's decision that petitioner finds objectionable is a legal presumption, not a factual observation, and is drawn from a comprehensive analysis of the entire statutory scheme. Moreover, as a factual observation, the remark-despite petitioner's original assertions-is amply justified: according to petitioner's recent status report,5 there are seven States with no explicit authorization for schedules of compliance because, in petitioner's *Petitioner repeatedly refers to the Administrator's holding as dicta, claiming that the Administrator "acknowledg[es]" in a footnote that "the issue of post-1977 standards is dicta (opinion at 3, n.2.) * * *." An examination of the footnote fails to support petitioner's contentions; there is in fact no such "acknowledgement" by the Administrator. Had petitioner instead stated that the last sentence in the footnote can be read as if the Administrator agreed with petitioner that the post-1977 status of the standards was not critical to his determination, there might be some merit to the assertions. Even so, the context of the decision as a whole makes it clear that the sentence obviously was not crafted with that intent in mind. The water quality standards at issue were promulgated by the Commonwealth of Puerto Rico in 1983. But for petitioner's erroneous interpretation of the law-which has forced petitioner to indulge in the unnecessary fiction of treating "virtually unchanged" post1977 standards as if they were really pre-1977 standards-there would be no occasion to question the post-1977 status of the 1983 standards. 5 Petitioner's Status Report (filed April 3, 1992). |