Whether the permits issued to placer miners who use hydraulic removal of overburden should authorize and set limitations for discharges caused by that activity is a legal issue that does not involve a genuine issue of material fact. Hence, it would not be suitable for an evidentiary hearing. Nevertheless, we must still determine whether, as a legal or policy matter, the issue should be reviewed. In the fact sheet for the 1989 placer mining permits, the Agency describes overburden removal as one of the "[e]ssential components" of placer mining. (Fact Sheet for 1989 Permits, at 2.) If removal of overburden is an essential component of placer mining, the question arises whether it is permissible for the Agency to divide up the integrated placer mining process and authorize discharges from only one part of the process, while specifically declining to authorize discharges from another part of the process. We conclude that review should be granted on this issue to further explore this question. A briefing schedule is set out in the conclusion below. III. CONCLUSION In sum, we conclude that one of the issues raised in MAC's appeal should be reviewed. This issue relates to the hydraulic removal of overburden. Section 124.91(g), 57 Fed. Reg. 5337 (Feb. 13, 1992), governing NPDES permit appeals, provides that: [t]he petitioner may file a brief in support of the MAC is hereby invited to file a brief on the issue for which review has been granted in the foregoing discussion. The brief must be filed by June 22, 1992. The Region may then file a responsive brief and MAC may file a reply brief in accordance with the schedule provided in § 124.91(g). As for the rest of the issues raised by MAC, review is denied. So ordered. IN THE MATTER OF CHEMICAL WASTE MANAGEMENT, INC. KETTLEMAN HILLS FACILITY RCRA APPEAL NO. 91-17 ORDER DENYING REVIEW Decided June 15, 1992 Syllabus Petitioner, El Pueblo para el Aire y Agua Limpio, appeals a June 5, 1991, decision by Region IX issuing a permit modification to Chemical Waste Management, Inc. (CWM). Petitioner contends that the decisionmaking process was tainted because James C. Breitlow, the Chief of the Permits Section for Region IX, was discussing potential employment with CWM at the same time the modification was being considered by the Region. Petitioner suggests that Mr. Breitlow violated the Agency's ethical standards and may be subject to criminal penalties under 18 U.S.C. §208(a), and asks that the permit be delayed or declared void pending a full investigation. Petitioner also asks that certain previously issued permits be reopened. Held: Although Mr. Breitlow should have recused himself slightly earlier than he did, he did not substantially participate in the decision to approve the June 5, 1991, modification and there is no evidence that his minimal participation in the permit review process in any way benefited CWM. Moreover, the final decision to approve the modification was made after Mr. Breitlow had left the Agency. In light of the totality of these circumstances, the decisionmaking process was not compromised or prejudiced by Mr. Breitlow's actions. Review is therefore denied. With regard to reopening other permits, the only other permit determination that was made after Mr. Breitlow's initial contact with CWM was a March 19, 1991, modification. Because that modification became effective thirty days after service of notice (40 C.F.R. § 124.15(b)), the Board is without jurisdiction to review it. Accordingly, review of that modification is also denied. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Opinion of the Board by Judge Reich: This case involves a petition for review of the issuance by U.S. EPA, Region IX, on June 5, 1991, of a permit modification to Chemical Waste Management, Inc.'s (CWM's) Kettleman Hills facility. The petition also asks that a previous modification, approved on March 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 19. 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 *EPA's ethical standards of conduct for employees provide, in part: Employees may not use their official positions for private gain 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 |