IN THE MATTER OF HIGHWAY 36 LAND RCRA Appeal No. 87-5 ORDER DENYING PETITION FOR REVIEW Decided September 2, 1987 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: By petition dated April 10, 1987, and submitted under 40 CFR § 124.19 (1986), Concerned Citizens of Eastern Colorado, et al.,1 request review of a permit decision by U.S. EPA Region VIII authorizing Highway 36 Land Development Co. to operate a hazardous waste storage, treatment, and disposal facility in Adams County, Colorado. Region VIII issued the permit under the resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901-6991i. Although the State of Colorado is authorized to administer a hazardous waste program in lieu of the federal program, EPA retains authority to administer certain requirements imposed by the Hazardous and Solid Waste Amendments of 1984. Only conditions in the permit issued by the Region are appealable to EPA; conditions in the state-issued permit are appealable only to the State. Under the rules governing this proceeding, there is no appeal as of right from the Region's permit determination. A petition for review of a RCRA permit should not be granted unless the permit determination is clearly erroneous or involves an important matter of policy or discretion. 40 CFR § 124.19(a) (1) and (2). The preamble to the regulations states that "this power of review should be only 1 The other petitioners joining with Concerned Citizens of Eastern Colorado include City of Brush; Board of County Commissioners of the County of Washington, Colorado; Board of County Commissioners of the County of Morgan, Colorado; City of Limon; Northeastern Colorado Association of Local Governments; Town of Akron; Leroy Whelden; Pam Whelden; Steve Baker; Pat Baker; and Robert D. Gilbert. sparingly exercised * * * [and] most permit conditions should be finally determined at the Regional level ***" 45 Fed. Reg. 33412 (May 19, 1980) (emphasis added). The burden of demonstrating that the permit should be reviewed is therefore on those requesting review. Based on the petition for review, Region VIII's response, the permittee's submission, and the record on appeal, I conclude that Petitioners have failed to carry their burden.2 Accordingly, their petition for review is denied. So ordered. 2 The Region submitted its views on the issues raised by Petitioners in response to a request for such views by the Chief Judicial Officer. See Letter from Chief Judicial Officer Ronald McCallum to Acting Regional Administrator Alexandra Smith (April 21, 1987). In an April 9, 1987 teleconference, the Chief Judicial Officer granted leave to the permittee, Highway 36, to submit its views. See Letter from J. Spaanstra and M. Squarrell to Administrator Lee Thomas (April 10, 1987) (confirming grant of leave). IN THE MATTER OF ULTRAPOWER 2 (WESTWOOD, CALIFORNIA) PSD Appeal No. 87-1 ORDER DENYING REVIEW Decided September 18, 1987 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: In petitions filed pursuant to 40 CFR § 124.19 (1986), John Williams, representing Boilermakers Lodge #549, and Catherine J. Bishop, Chairperson of the Westwood Environmental Protection Committee, requested review of a Prevention of Significant Deterioration (PSD) permit determination for a 10 megawatt woodfired power production facility. The permit applicant, Ultrapower 2, a general partnership, currently operates the facility near Westwood, California.1 The petitioners have raised several concerns about the facility, expressing their belief that it is polluting the environment in violation of federal law.2 The permit determination for which they seek review was made by the U.S. Environmental Protection Agency, Region IX, San Francisco, California. Under the rules governing this proceeding, persons eligible to file a petition for review are those "who filed comments on th[e] draft permit or participated in the public hearing ** ** 40 CFR § 124.19(a). Those who do not satisfy these requirements may nevertheless petition but "only to the extent of the changes from the 1The Clean Air Act forbids construction of any major emitting facility without a PSD permit if the facility will be located in an area that is meeting National Ambient Air Quality Standards (NAAQS). 42 U.S.C. §§ 7470–79. Ultrapower 2's facility is located in such an area on June 22, 1986, EPA Region IX brought an enforcement action against Ultrapower 2 in federal district court for operating the Westwood facility without a valid PSD permit. That action is currently pending. United States v. Ultrapower 2, Civ. No. C-87-0914 (E.D. Cal.). 2 Cf. Id. draft to the final permit decision." Id. All petitioners must meet a filing deadline of 30 days after the final permit decision was issued. Id. In the present instance, the final permit did not differ materially from the draft permit, and neither petitioner satisfied all of the procedural requirements. Williams failed to file timely comments on the draft permit; therefore, he cannot be regarded as having filed comments for purposes of § 124.19.3 Bishop's petition did not meet the 30-day deadline in § 124.19; therefore, her petition is untimely.4 Accordingly, both petitions must be dismissed on procedural grounds. Even if these procedural considerations were ignored, the petitioners have not convinced me that review is warranted. Under the rules governing this proceeding, there is no appeal as of right from the Region's permit determination. A petition for review of a PSD permit should not be granted unless the permit determination is clearly erroneous (factually or legally) or involves an important matter of policy or discretion. 40 CFR § 124.19(a) (1) and (2). The preamble to the regulations states that "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) (emphasis added). The burden of demonstrating that the permit should be reviewed is therefore on those requesting review. Based on the petitions for review, the Region's responses,5 and the record on appeal, I conclude that petitioners have failed to carry their burden.6 Accordingly, their petitions for review are denied. 3 EPA solicited comments on the draft permit on July 2, 1986. The 30-day comment period closed on August 1, 1986. Williams submitted two sets of comments, but they were dated September 18, 1986, and September 25, 1986. 4 The Region issued the final permit decision on November 20, 1986, and the 30-day deadline for petitioning ended on December 22, 1986. The Bishop petition was dated January 9, 1987, and was not received by EPA until January 16, 1987. 5 Region IX submitted a combined response to the two petitions on March 16, 1987. The Chief Judicial Officer requested a supplement. See letter from Chief Judicial Officer Ronald L. McCallum to Director David Howekamp (dated May 19, 1987). Region IX mailed the supplement on August 13, 1987. 6 Enforcement and compliance issues relating to the construction and operation of the permit applicant's facility can and are being kept separate from issues relating to the content of the permit's terms and conditions. See note 1 supra. Petitioner's allegations respecting the former issues are therefore beyond the scope of this proceed ing. |