IN THE MATTER OF NORTHSIDE SANITARY RCRA Appeal No. 84-4 ORDER DENYING REVIEW Decided April 3, 1985 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: In a petition filed under 40 CFR § 124.19 (1984), Northside Sanitary Landfill, Inc. (Petitioner), through its President, John W. Bankert, Sr., requested review of EPA Region V's response to comments issued in conjunction with the denial of Petitioner's final RCRA permit.1 Petitioner requested review for the purpose of having the response to comments restated "to correctly reflect that the 'Old Farm Area' is not included in Northside's Interim Part A Permit, and hence should not be subsequently referenced in a Closure Procedure * * *. No reference to the 'Old Farm Area' was made in the Part A Interim Permit and/or Application." Petitioner twice stated, however, that it was not objecting to EPA's final decision to deny the permit. EPA Region V responded to the petition and urged denial of review on the grounds that (i) Petitioner is not entitled to have the permit decision reviewed since it is not contesting the denial of the permit, and (ii) the Old Farm Area should be subject to the closure requirement because Petitioner, in its RCRA Part A permit application, clearly delineated its hazardous waste facility, on diagrams and an aerial photograph, as including the Old Farm Area.2 Petitioner responded, by counsel, arguing that (i) EPA's finding regarding the Old Farm Area is subject to review under 40 CFR § 124.19, and "[i]f necessary for administrative appellate review, the Administrator should consider Northside's submittal an appeal from the permit decision itself"; and (ii) Region V "has argued 'out of 1 Letter (petition), dated November 8, 1984, from John W. Bankert, Sr., President, Northside Sanitary Landfill, Inc. 2 EPA Region V Response, filed January 11, 1985. context' the hand-drawn map *** and the photograph contained in Northside's hazardous waste permit application of November 25, 1980." 3 I agree with Petitioner that it has, raised an issue which is reviewable under § 124.19. The location and dimensions of a hazardous waste facility are probably two of the most rudimentary pieces of information that go into a proper permit decision. If the permit decision does not identify where the facility is located, or how big it is, the permit decision cannot be implemented successfully regardless of the outcome of the decision. This is particularly apparent in the present case, for either including or excluding the Old Farm Area will significantly alter the area of Petitioner's landfill that is subject to the closure and post-closure requirements of the regulations, 40 CFR Part 265 (Subpart G). Therefore, even though Petitioner has stated that it does not object to the denial of its permit, I am persuaded that the matter which Petitioner is raising is such an integral part of the permit decision that it is the kind of matter which can be reviewed under § 124.19.4 Nevertheless, review is not warranted in this case. Section 124.19 clearly provides that RCRA permits will not be reviewed unless the Petitioner is able to show that the permit determination is clearly erroneous or involves an exercise of discretion or policy which is important and which should be reviewed as a discretionary matter, 40 CFR § 124.19(a) (1) and (2). There is no appeal as of right from the Region's permit determination. The preamble to this regulation states "this power of review should be only sparingly exercised [and] *** ** most permit conditions should be finally determined at the Regional level ***." 45 Fed. Reg. 33412 (May 19, 1980). The burden of demonstrating that the permit determination should be reviewed is therefore on Petitioner. In this case, Petitioner has not sustained its burden of showing that the permit determination is either clearly erroneous or involves an exercise of discretion or policy which warrants discretionary review. 3 Petitioner's Response to Region V's Response, dated January 22, 1985. 4 The substance of Petitioner's objections to the permit decision could have been presented in a form less likely to invite procedural attack. For example, instead of stating that it did not object to the denial of the permit, Petitioner could have simply reworded its appeal to state that it did in fact object to denial of the permit, but only to the extent that the denial purports to include within its scope an area (the Old Farm Area) that is not, according to Petitioner, part of the hazardous waste facility designated in its Part A application. Specifically, Petitioner alleges that Region V erred when it included the Old Farm Area as part of its facility; however, Petitioner never provides any clear explanation of how or why EPA's action constitutes error. For example, although Petitioner asserts that its Part A application did not contain any reference to the Old Farm Area, it is clear from an examination of the application that the absence of a reference to a place name, such as Old Farm Area, is not material to identification of the site: the map and aerial photograph accompanying the Part A application are the best evidence of the facility's location and dimensions, and its boundaries are clearly marked on these documents. Also, when Petitioner responded to EPA's comments on its petition for review, Petitioner never explained how the map and aerial photograph were used by EPA "out of context," as Petitioner alleges. If there is another context, Petitioner has not identified it. Nor has Petitioner given any reasons for distancing itself from Mr. Bankert's sworn testimony, which EPA cites in its comments and claims is proof that hazardous waste disposal took place at the Old Farm Area after November 19, 1980. Instead, Petitioner merely responds by noting that there was other testimony in the record which EPA omitted. Respondent fails, however, to state what this testimony is or even whether it contradicts EPA's assessment of Mr. Bankert's testimony. Therefore, in view of the foregoing, I am not persuaded that Petitioner has sustained its burden of showing that the Region's permit determination is clearly erroneous or otherwise subject to review. Accordingly, the petition for review is denied. So ordered. IN THE MATTER OF ROCKY MOUNTAIN PRESTRESS, INC., AND AERR CO., INC. TSCA Appeal No. 84-3 FINAL DECISION Decided April 8, 1985 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Complainant, Director of the Enforcement Division, Region VIII, United States Environmental Protection Agency (EPA), issued a complaint against respondents, Rocky Mountain Prestress, Inc. (RMP) and AERR Co., Inc., under the authority of § 16(a) of the Toxic Substances Control Act (TSCA) 15 U.S.C. § 2615(a) 1 for an alleged violation of the regulations implementing Section 6(e) of TSCA.2 Respondents denied the violation and a hearing was held before Administrative Law Judge Thomas B. Yost (presiding officer). The presiding officer issued an initial decision in which he determined that respondents had violated the regulations and he assessed civil penalties against each. Both respondents appealed the initial decision, although on different grounds. The initial decision is affirmed,3 and all findings 1 TSCA § 16(a)(1) provides as follows: Civil. (1) Any person who violates a provision of Section 15 shall TSCA § 15 provides, in pertinent part, that it shall be unlawful for any person to "(1) fail or refuse to comply with ** * (B) any requirement prescribed by § *** 6, or (C) any rule promulgated under § * 6.” 2 Section 6(e) of TSCA required the Administrator to promulgate rules regulating the manufacturing, processing, use, disposal and distribution in commerce of polychlorinated biphenyls (PCBs). Those regulations are in 40 CFR Part 761 (1983). 3 The Chief Judicial Officer, as the Administrator's delegatee, has the authority to issue final decisions in administrative civil penalty cases brought under TSCA. 40 CFR Part 22 (1983). |