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40 CFR § 66.31 (c)(5)(1984) (Inability to obtain financing for pollution control equipment constitutes a reason beyond the control of the owner to the extent that such inability resulted from temporary, verifiable, general market conditions.). So, if a source meets the prerequisite for the "inability to comply" exemption, then economic infeasibility that results from reasons entirely beyond the control of the source can be raised in these proceedings.

In this case Respondent's evidence of economic infeasibility cannot be considered relevant to show entitlement to an "inability to comply" exemption because Respondent has not met the prerequisite for this exemption, i.e., Respondent has not received a delayed compliance order under section 113(d) of the Act, or judicial decree allowing it to delay compliance beyond the deadline in the SIP. In fact, Respondent conceded that it did not meet the prerequisite for this exemption in the Joint Pretrial Submittal at 13. Jt. Ex. 1 at 1314.

Since the statute and regulations bestow this opportunity for a source to raise economic infeasibility claims in a limited and specific manner, the conclusion is that such claims cannot otherwise be raised during these section 120 proceedings.

This conclusion is bolstered by the fact that the Clean Air Act allows claims of technological and economic infeasibility to be considered in other situations. For example, Respondent could have raised its claims of infeasibility with the Ohio Environmental Protection Agency when that agency was formulating the state implementation plan, see generally 42 U.S.C. §7410(a), for as long as the national standards are met, a state can seek to accommodate industries with particular economic or technological problems by selecting whatever mix of control devices it desires. Union Electric Co. v. EPA, 427 U.S. 246, 266 (1976). Failing to get an accommodation in the plan, Respondent could have sought a variance from the SIP requirement from the State.8 Id.; 42 U.S.C. §7410(a)(3)(A). In addition, in an enforcement action under section 113(b), 42 U.S.C. §7413(b), federal

8

* Respondent did seek a variance from Ohio EPA after EPA issued the notice of noncompliance in this case. According to Respondent, the Ohio EPA approved a variance from the SIP requirement at issue on February 19, 1986, and subsequently submitted the variance to EPA for approval.

district courts can consider economic and technological factors, not as a defense to the violation, but in fashioning the appropriate relief.9

For all the foregoing reasons, I conclude that evidence of alleged technological and economic infeasibility was properly excluded from the liability phase of these proceedings. The initial decision and ruling on the motion in limine are affirmed.

So ordered.

9 Union Electric v. EPA, 593 F.2d 299, 306 (8th Cir. 1979); Friends of the Earth

v. Potomac Electric Power Co., 419 F. Supp. 528, 535 (D.D.C. 1976); see also Complainant's Reply Brief at 57.

IN THE MATTER OF COLUMBIA GAS TRANSMISSION

COMPANY

UIC Appeal No. 87-1

ORDER DENYING PETITION FOR REVIEW

Decided April 13, 1987

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Lee M. Thomas, Administrator:

EPA Region 2 issued an underground injection control (UIC) permit to Columbia Gas Transmission Company of Charleston, West Virginia, for a brine disposal well in Greenwood, New York (Well H-229). Mr. Lester T. Brew, Sr. has petitioned for review of the final permit decision pursuant to 40 CFR § 124.19. He claims that the company does not have the legal right to use the land on which the facility is located, and requests that the effective date of the permit be postponed until the company signs a lease for the use of his property. For the reasons stated below, I am denying the petition for review.

BACKGROUND

The Safe Drinking Water Act and implementing regulations prohibit any underground injection that is not authorized by permit or rule, 42 U.S.C. § 300h(b)(1)(A); 40 CFR § 144.11. Columbia Gas is currently authorized by rule to operate Well H-229, pending final Agency action on its permit application. 1

Region 2 issued a final permit decision on December 23, 1986, effective January 31, 1987. Mr. Brew filed a timely request for review on January 22, 1987. Since Mr. Brew commented on the draft permit,

140 CFR § 144.21; 40 CFR Part 147, Subpart HH. See letter from Richard L. Caspe, Director, Water Management Division, to Robert C. Weidner, Columbia Gas Transmission Company, February 5, 1987.

he has standing to petition for review, pursuant to 40 CFR § 124.19(a).

DISCUSSION

Mr. Brew claims that he owns the property on which the facility is situated, and that Columbia does not have an agreement with him to use it for brine disposal. He requests, therefore, that the effective date of the perinit be postponed until April 25, 1987, to permit the parties to negotiate such an agreement.

The UIC regulations authorize the Regional Administrator to establish the effective date of a final underground injection control permit. 40 CFR § 124.15. The Regional Administrator's action in establishing that date should not be subject to review unless it involves a clear error of fact or law, or an exercise of discretion that warrants review as a discretionary matter. 40 CFR § 124.19. Petitioner has not demonstrated that review is warranted on any of these grounds.

The regulations impose the duty to apply for an injection permit on the well operator. 40 CFR §§ 144.31(b) and (c). The regulations require the well operator to demonstrate that its wells are constructed and maintained so that contaminants will not move into underground sources of drinking water. 40 CFR § 144.12. The regulations do not require the permit applicant to demonstrate that it has the legal right to conduct injection activities at the site, or even to provide information on the application form as to ownership of the land. 40 CFR § 144.31(e). The Region takes the position that "ownership of the land on which the facility is located or activity takes place is not a prerequisite, a condition, or even a consideration in issuing a permit to the operator." Regional Response to Petition, p. 2. The regulations support its position. Since the Region was not required to take ownership of the land into account in issuing its final permit decision, it did not err in denying Mr. Brew's request to postpone the effective date of the permit. Accordingly, Mr. Brew's petition for review is hereby denied.

So ordered.

IN THE MATTER OF APPLICATION TO MODIFY THE FINAL SUSPENSION ORDER FOR PESTICIDE PRODUCTS CONTAINING DINOSEB

FIFRA Docket No. 622

DECISION AND FINAL ORDER

Decided April 16, 1987

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Lee M. Thomas, Administrator:

Based on the Recommended Decision issued on April 13, 1987, by Administrative Law Judge J.F. Greene, I hereby modify my October 7, 1986 Order (51 Fed. Reg. 36634; Oct. 14, 1986) suspending the registrations of all pesticide products containing dinoseb to permit the use of dinoseb on dry peas, lentils and chickpeas in the Oregon Counties of Morrow, Umatilla and Union. These uses are permitted during the 1987 growing season subject to the same use restrictions and other terms and conditions as set forth in my March 30, 1987 Decision and Final Order in FIFRA Docket No. 612 (copy attached).

I. ORDER

This Notice and Order modifies my October 7, 1986 Order suspending the registration of each pesticide product which contains dinoseb (2-sec-butyl-4,6-dinitrophenol) or any of its salts, to permit the use of dinoseb on dry peas, lentils and chickpeas, subject to certain limitations and restrictions which I have determined to be both reasonable and practical as well as necessary to reduce risks to an acceptable level during the period of this order. In doing so, I am accepting in part the restrictions recommended by the Administrative Law Judge, with certain modifications and additions. (In re: Application to Modify Final Suspension of Pesticide Products Which Contain Dinoseb: FIFRA Docket No. 612.) These restrictions will be incorporated into the Section 18 emergency exemptions for the States

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