IN THE MATTER OF CWM CHEMICAL SERVICES, INC., ET AL. TSCA Appeal No. 91-6 DECISION ON INTERLOCUTORY APPEAL Decided March 23, 1992 Syllabus This is an interlocutory appeal from a November 6, 1991 Order by Administrative Law Judge Thomas B. Yost. In that Order, Judge Yost held that the five-year statute of limitations in 28 U.S.C. § 2462 applies to the assessment of administrative penalties under TSCA. As a result, a large portion of the complaint filed by the Director of the Environmental Services Division, EPA Region II, was dismissed. On November 18, 1991, Judge Yost certified this issue for interlocutory appeal pursuant to 40 C.F.R. §22.29. Because the identical issue was under consideration in another case, 3M Company (Minnesota Mining and Manufacturing), TSCA Appeal No. 90-3, the Chief Judicial Officer stayed all proceedings to allow sufficient time to properly consider the issue in the context of this case as well as 3M. Held: In light of the recent decision in 3M Company (Minnesota Mining and Manufacturing), TSCA Appeal No. 90–3 (CJO, February 28, 1992), holding that the statute of limitations in 28 U.S.C. §2462 does not apply to the assessment of administrative penalties under TSCA, Judge Yost's November 6, 1991 Order is reversed, the dismissed portions of the complaints are reinstated, and the stay is vacated. Before Environmental Appeals Judges Ronald L. McCallum and Timothy J. Dowling (Acting). Judge Edward E. Reich did not participate in this case. Per curiam: On November 18, 1991, Administrative Law Judge Thomas B. Yost, pursuant to a motion by Complainant, Director of the Environmental Services Division, EPA Region II, certified an issue for interlocutory appeal to the Administrator in the above-referenced case. See 40 C.F.R. § 22.29. The appeal arises from Judge Yost's November 6, 1991 order holding that the five-year statute of limitations contained in 28 U.S.C. § 2462 applies to the assessment of administrative penalties under the Toxic Substances Control Act (TSCA). See Order on Motion for Leave to File Response (ALJ Yost, Nov. 6, 1991). On appeal, Complainant seeks reversal of that determination and the resulting dismissal of a large portion of the complaint. On December 13, 1991, all proceedings in this matter were stayed pending resolution of the issue on interlocutory appeal. In light of the recent decision in 3M Company (Minnesota Mining and Manufacturing), TSCA Appeal No. 90-3 (February 28, 1992), holding that the five-year statute of limitations in 28 U.S.C. § 2462 does not apply to the assessment of administrative penalties under TSCA, we reverse the applicable portions of Judge Yost's November 6, 1991 order. The reasoning of the 3M decision applies with equal force to this case. See 3M at 22-29. Accordingly, none of the allegations in the complaint are time barred, the dismissed portions of the complaint are reinstated, and the December 13th stay is hereby vacated.1 So ordered.2 1 Complainant's request for oral argument is denied. 2 The Environmental Appeals Board, as the Administrator's delegatee, has the authority to issue decisions in proceedings on interlocutory appeal. See 57 Fed. Reg. 5324-25 (Feb. 13, 1992) (revising 40 C.F.R. §§ 22.04(a) & 22.29). 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 'The 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]."). |