FORSYTHE generators, a matter not directly controlled by Southern Timber. Second, the Order on Motion for Reconsideration (pp. 19-29) in Southern Timber makes clear that the general issue of corporate officer liability under RCRA is a factually sensitive matter that requires investigation into the nature and extent of the role played by the corporate officer. In the case at hand, viewing the evidence in the light most favorable to Complainant,2 we believe there is a genuine issue of material fact as to Forsythe's role at the Natrona facility and his liability for the alleged violations.3 Accordingly, the matter is not amenable to summary disposition at this time.4 The April 23, 1991 orders dismissing Forsythe as a Respondent are vacated, and the case is remanded for further proceedings.5 So ordered. 2 Although the Agency's Consolidated Rules do not directly address the issue, it is well established that on a motion for summary judgment, the evidence should be viewed in the light most favorable to the non-moving party. See 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, ¶ 56.15 (2d ed. 1992). 3 For example, Complainant presented evidence that Forsythe (1) was regularly updated on environmental problems at the Natrona facility; (2) was regularly informed of the actions and expenditures required to effect environmental compliance; and (3) more significantly, exercised final authority for the allocation of funds for corrective measures, and made or approved all significant expenditures for correcting environmental problems. See April 12, 1991 Stephens Affidavit. This evidence stands in sharp contrast to the evidence adduced in Southern Timber, which failed to show that the officer at issue had final authority for plant operations or significant expenditure of funds. See Order on Motion for Reconsideration, at 25-29. While we express no view as to whether Stephens' testimony by itself would be sufficient to support a finding that Forsythe is personally liable for the violations at issue, when combined with Forsythe's position as President, Chief Executive Officer, Chairman of the Board, and principal shareholder of Thermex, it creates a genuine issue of material fact that warrants further exploration at trial. 4 In fairness to the Fresiding Officer, it should be noted that the Order on Motion for Reconsideration in Southern Timber was issued after Forsythe was dismissed as a Respondent. Although certain language in the Southern Timber Final Decision could be read to suggest broad immunity under RCRA for corporate officers, the Order on Motion for Reconsideration makes clear that the issue entails a factual inquiry into the nature and role of the officer's activities. 5 By letter dated June 30, 1991, Respondents allege that counsel for Complainant has improperly coerced a former Thermex employee into withdrawing an affidavit that supports Respondents' position as to Forsythe's liability. Respondents request that this proceeding be stayed until the matter is fully investigated. We express no view as to these allegations, and we leave it to the Presiding Officer to determine in the first instance what effect, if any, they should have on future proceedings. IN THE MATTER OF U.S. DEPARTMENT OF ENERGY, PINELLAS PLANT RCRA Appeal No. 91-3 ORDER DENYING REVIEW Decided July 8, 1992 Syllabus The League of Women Voters of North Pinellas County, Inc., petitioned for review of the federal portion of a permit issued by Region IV under Section 3005 of the Resource Conservation and Recovery Act to the U.S. Department of Energy (owner) and General Electric Company (operator) for the Pinellas Plant in Largo, Florida, which manufactures neutron generators and electronic and mechanical components for the weapons industry. Petitioner asks that authorization for thermal treatment of hazardous waste be denied, and raises concerns about the regulation of radioactive waste by the permit. Held: The petition for review is denied because it fails to identify and factual or legal errors or any policy considerations or exercises of discretion that warrant review. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Per Curiam: Petitioner, the League of Women Voters of North Pinellas County, Inc., seeks review of the federal portion of a permit issued under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §6925, for the Pinellas Plant in Largo, Florida, which manufactures neutron generators and electronic and mechanical components for the weapons industry. Region IV issued the federal portion of the permit on February 9, 1990 to the United States Department of Energy as owner, and the General Electric Company as operator, of the Pinellas Plant.1 The federal 1 Section 124.19(a) provides that a petition for review may be filed within thirty days after service of notice of the Regional Administrator's permit decision. The Region failed to serve a copy of its permit decision on Petitioner when that decision was issued on February 9, 1990. In an effort to preserve Petitioner's appeal rights, the portion of the permit imposes operating requirements for the management of hazardous wastes under the 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA.2 As requested by the Agency's Judicial Officer,3 Region IV submitted a response to the petition for review and relevant portions of the administrative record. Under the rules that govern this proceeding, an 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 § 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. 4 Petitioner seeks review on four grounds. First, Petitioner asks that authorization for thermal treatment of hazardous waste be denied because of concerns about the safety of open burning. Second, Petitioner requests regulation of all radioactive and hazardous air emissions at the Pinellas Plant. Third, Petitioner requests that the permit apply the standards of 40 CFR § 191.04 to the operations at Pinellas.5 Finally, Petitioner requests re-examination of low-level Region served a copy of its permit decision upon Petitioner on January 9, 1991, almost a full year later. The Region's action in this regard is problematic because the normal time for reviewing the permit has long since expired. In other circumstances, the Region's actions might well raise serious equitable concerns, particularly if attempted in a proceeding involving a permit for new construction under RCRA or the Clean Air Act's Prevention of Significant Deterioration (PSD) Program. Because we deny review on the merits, however, we need not address whether the Region's action in fact preserved any right to substantive review of the issues raised by the petition. 2The non-HSWA portion of the permit was issued by Florida, an authorized State under RCRA § 3006(b), 42 U.S.C. § 6926(b). 3 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. On March 1, 1992, all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992). 4 Thermal treatment of hazardous waste at the Pinellas Plant is currently regulated under the State-issued portion of the RCRA permit. On May 2, 1989, DOE submitted a permit application to EPA for the thermal treatment process at the Pinellas Plant under Subpart X of 40 CFR Part 264. EPA has until November 8, 1992, to grant or deny this request. 42 U.S.C. §6925(c)(2)(B). 5 This regulation is found in 40 CFR Part 191, which is entitled "Environmental Radiation Protection Standards for Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes." radionuclide regulations to determine whether adequate protection is afforded if DOE applies the Nuclear Regulatory Commission policy of exempting low-level radioactive waste from regulation. In much more detail than provided here, the Region responds that Petitioner has not met its burden of demonstrating that review is warranted under § 124.19 because the issues raised by Petitioner are beyond the scope of the federally issued portion of this permit. Concerning Petitioner's request to deny authorization for thermal treatment of hazardous waste, the Region correctly notes that the thermal treatment process for this facility is presently governed by the state, not federal, portion of this permit. The Region also correctly explains that all other concerns raised by Petitioner pertain to matters regulated by provisions other than HSWA, the authority used by the Region in issuing this permit. For the reasons set forth in Region IV's "Response to the League of Women Voters Request for Permit Review," which reasons are hereby adopted and incorporated by reference as if fully set forth herein, Petitioners have failed to show that the Region's permit determination in this case is clearly erroneous or otherwise warrants review under 40 CFR § 124.19(a). Accordingly, review is hereby denied. So ordered. IN THE MATTER OF SANDOZ PHARMACEUTICALS CORPORATION RCRA Appeal No. 91-14 ORDER DENYING REVIEW IN PART AND REMANDING IN PART Decided July 9, 1992 Syllabus Sandoz Pharmaceuticals Corporation seeks review of certain corrective action requirements in the federal portion of a RCRA permit issued to Sandoz by U.S. EPA Region II for Sandoz' manufacturing and research facility in East Hanover, New Jersey. Sandoz challenges: (1) the adequacy of the RCRA Facility Assessment; (2) the regulation of five “Areas of Concern," where underground storage tanks were once situated; (3) the Region's failure to establish action levels in the permit; (4) the inclusion of generic, boilerplace investigation requirements that are based on suspected (as opposed to confirmed) releases; and (5) the time constraints imposed by the permit for various activities. Held: The first issue listed above has not been preserved for review. With respect to the second issue, the proceeding is remanded to the Region, which is directed to supplement its response to comments by explaining why, in light of the remediation already performed by Sandoz on the Underground Storage Tank sites, further investigation of those sites is required by the permit. With respect to the third issue, the Agency has indicated that, where possible, action levels should be specified when the permit is first issued. The proceeding is remanded to the Region to explain why it deviated from this approach. On the other two issues, review is denied. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Opinion of the Board by Judge Dowling: Sandoz Pharmaceuticals Corporation seeks review of certain corrective action requirements in the federal portion of a permit issued to Sandoz by U.S. EPA Region II under the Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act of 1976 (RCRA), for Sandoz' manufacturing and research |