Page images
PDF
EPUB

Available Control Technology (BACT) determinations; the alleged use of unrepresentative meteorological data; the contention that the Complex I air dispersion model for predicting pollution levels is inappropriate; and miscellaneous matters such as the contention that the impact of emissions on vegetation was not properly evaluated. With one exception, Region IX has addressed each of petitioners' allegations and has provided rational explanations for not making any alterations in its permit determination. The exception concerns Region IX's assertion that EPA lacks the authority to "consider" pollutants not regulated by the Clean Air Act when making a PSD determination. This assertion is correct only if it is read narrowly to mean EPA lacks the authority to impose limitations or other restrictions directly on the emission of unregulated pollutants. EPA clearly has no such authority over emissions of unregulated pollutants. Region IX's assertion is overly broad, however, if it is meant as a limitation on EPA's authority to evaluate, for example, the environmental impact of unregulated pollutants in the course of making a BACT determination for the regulated pollutants. EPA's authority in that respect is clear.

Under § 165(a)(4) of the Clean Air Act and the relevant regulations a proposed facility is subject to the "best available control technology" (BACT) for each pollutant that is regulated by the Act that is emitted from, or which results from, such facility in significant amounts, 42 USC §7475(a)(4); 40 CFR §52.21(j) (1985). As defined in § 169(3) the term BACT refers to an "emission limitation" that is set on a case-by-case basis for regulated pollutants, "taking into account energy, environmental, and economic impacts and other costs" associated with the particular emission control system that is selected to achieve the BACT emission limitation. 42 USC § 7479(3) (emphasis added); 40 CFR § 52.21(b)(12). Hence, if application of a control system results directly in the release (or removal) of pollutants that are not currently regulated under the Act, the net environmental impact of such emissions is eligible for consideration in making the BACT determination. The analysis may take the form of comparing the incremental environmental impact of alternative emission control systems with the control system proposed as BACT; however, as in any BACT determination, the exact form of the analysis and the level of detail required will depend upon the facts of the individual case. Depending upon what weight is assigned to the environmental impact of a particular control system, the control system proposed as BACT may have to be modified or be rejected in favor of another system. In other words, EPA may ultimately choose more stringent emission limitations for a regulated pollutant than it would otherwise

have chosen if setting such limitations would have the incidental benefit of restricting a hazardous but, as yet, unregulated pollutant.1

After reviewing Region IX's responses to petitioners' comments and to their petitions for review, it is unclear to me whether Region IX has given appropriate consideration to the matters just described. Petitioners have expressed understandable frustration at being told, without more, that "EPA does not have the authority to consider dioxin or most other toxic air contaminants for the purpose of issuing a PSD permit." Accordingly, I am remanding the permit determination to Region IX for reconsideration and for action consistent with the foregoing interpretation of EPA's authority to consider unregulated pollutants when making PSD determinations. In the meantime a ruling on the pending petitions for review will be held in abeyance. So ordered.

1 Industry engineers would remain free, of course, to exercise their own independent judgment in devising ways to meet any such more stringent emission limitations, provided the energy, environmental and economic impacts associated with the chosen control system are not inconsistent with the corresponding impacts associated with the more stringent emission limitations. See In the Matter of CertainTeed Corporation at 5-8, PSD Appeal No. 81-2 (Decision of the Administrator, December 21, 1982).

IN THE MATTER OF L.B. CHEMICAL CO., INC.

FIFRA Appeal No. 85-1

FINAL DECISION

Decided June 17, 1986

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

L.B. Chemical Co., Inc. (respondent) appeals an initial decision of an Administrative Law Judge (presiding officer) assessing $2,860 in civil penalties against respondent for violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and its implementing regulations. In his initial decision the presiding officer held that the Company produced three different varieties of pesticide products at an unregistered establishment in violation of FIFRA § 12(a)(2)(L), and that one of the pesticides was adulterated and one was misbranded, both in violation of FIFRA § 12(a)(1)(E). The Chief Judicial Officer has the authority to decide this appeal pursuant to 40 CFR § 22.31 (1985). After consideration of the entire record, I conclude that respondent has shown no error of fact or law or abuse of discretion in the initial decision. The initial decision is, therefore, affirmed and the findings of fact, conclusions of law and reasons therefor are adopted and incorporated herein by reference. However, there is one point I would like to discuss.

As I view the record, EPA did not take action, by giving notice or otherwise, to revoke L.B. Chemical Co.'s original establishment registration; instead, the Company voluntarily surrendered its estab

1 That an appellate administrative tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without extensive restatement is well-settled. United States v. Orr, 474 F.2d 1365 (2d Cir. 1973); Carolina Freight Carrier Corporation v. United States, 323 F.Supp. 1290 (W.D.N.C. 1971); In re Chemical Waste Management, Inc., RCRA (3008) Appeal No. 84-8, Order Adopting the Presiding Officer's Initial Decision as Final Agency Action (September 5, 1984); and cases cited in Ciba Geigy v. Farmland Industries, FIFRA Comp. Dkt. Nos. 33, 34 and 41 (Opinion of the Judicial Officer, April 30, 1981).

lishment registration, as is manifest from its letter to EPA dated October 1, 1974.2 Accordingly, notice to the Company that the Company's establishment registration was no longer in effect would have been superfluous. In addition, nothing in FIFRA or EPA's implementing regulations requires notice from EPA when an establishment registration is terminated.3 Also, nothing in the Administrative Procedure Act (APA), 5 U.S.C. §551 et seq., requires notice to be given when registration is terminated by the voluntary act of the registrant.4 Therefore, contrary to the Company's assertions, notice from EPA was not necessary to terminate the Company's establishment registration under the circumstances presented here.

ORDER

Respondent is ordered to pay the $2,860 civil penalty assessed in the initial decision. Payment must be made within 60 days after receipt of this Order by sending a cashier's check, payable to the Treasurer, United States of America, to EPA-Region IV (Regional Hearing Clerk) P.O. Box 100142, Atlanta, GA 30384.

So ordered.

2 The letter is in the appeals record. Nothing in FIFRA or its implementing regulations prohibits a pesticide producer from voluntarily surrendering its establishment registration. However, an establishment that surrenders its registration must still submit a pesticide report to EPA "showing the types and amounts of pesticides or devices produced" in the past calendar year (i.e., the calendar year immediately prior to that in which the registration is voluntarily surrendered) and in the current calendar year up to the time registration was surrendered. 40 CFR §§ 167.1 and 167.5 (1985).

3 However, Agency policy is that cancellation of an establishment registration be upon notice. Undated Memorandum of Sanford W. Harvey, Jr., Exh. 4 to Region IV's Motion for Accelerated Decision. The policy addresses only those situations where the Agency decides to impose cancellation as a sanction; it does not apply to situations where a producer voluntarily surrenders its establishment registration.

4 When termination results from agency-initiated action, the result is different. 5 U.S.C. § 558(c)(1) requires (written) notice from any agency that intends to withdraw, suspend, revoke, or annul a license (registration). Under this provision, notice to a pesticide producer would be required if the Agency imposes one of these sanctions. Here, respondent voluntarily withdrew its establishment registration; accordingly, §558(c)(1)'s notice requirements are inapplicable.

In passing, it should be noted that 5 U.S.C. §558(c)(1) also requires that before an agency may revoke a license, a licensee must be given the opportunity to demonstrate or achieve compliance with all lawful requirements of the license. It would be helpful if language similar to §558(c)(1) could eventually be included in the Agency's regulations. Of course, in the interim, §558(c)(1) binds EPA, as it does all other federal administrative agencies.

IN THE MATTER OF BRYANT WASTE MANAGEMENT,

INC.

RCRA Appeal No. 85-2

ORDER DENYING REVIEW

Decided June 23, 1986

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Lee M. Thomas, Administrator:

In a petition filed pursuant to 40 CFR § 124.19, Bryant Waste Management, Inc. (Petitioner) seeks review of a decision by Region III to deny a hazardous waste management permit for Petitioner's facility under the Resource Conservation and Recovery Act (RCRA). The petition was filed by Kenneth M. Bryant, who identifies himself as the operator of the facility. Petitioner argues that the time allotted by the Regional Administrator in the permit application process was not sufficient for Petitioner to submit all the information required for a successful application. Specifically, Petitioner argues that the Region did not allow adequate time for the resolution of local zoning matters or for certification of the stability of existing hazardous waste impoundment dikes. Petitioner also argues that he should have been granted additional time to prepare his permit application following his receipt of EPA's Permit Applicant's Guidance Manual for General Facility Standards for 40 CFR Part 264 (Guidance Manual) many months after its publication.1 Region III opposes review of the permit denial. I hold that further review is unwarranted and deny the petition.

Petitions for review of RCRA permit decisions are not granted unless the permit determination is clearly erroneous or involves an exercise of discretion or policy that is important and therefore should

1 The parties have evidently confused publication of the Guidance Manual, published June 21, 1983, with the Final Draft Permit Applicants Guidance Manual for Hazardous Waste Land Treatment, Storage and Disposal Facilities, Vol. 1, published in January 1984. Petitioner apparently received both documents in October 1984.

« PreviousContinue »