and not the administrative review procedures, apply to separatelyprocessed exemption requests. The paragraph from which the above quotation was taken states: * Section 3005(j)(5) requires that applications for ex- Guidance at p. 1-6 (emphasis added). This paragraph does not mention the administrative review procedures in Part 124; instead, it refers only to the public participation procedures in Part 124, such as the 45-day period for receiving written comments under Section 124.10 ("Public notice of permit actions and public comment period") and the public hearing provisions of Sections 124.11 ("Public comments and requests for public hearings") and 124.12 (“Public hearings"). The Guidance does not mention the administrative review procedures until the next paragraph, where it clearly states that review under Section 124.19 ("Appeal of RCRA * * * permits”) may not be appropriate for the exemption decision process: Because of the short deadlines for decisions under Id. (emphasis added). Thus, neither RCRA § 3005(j), 40 CFR § 124.19, nor the Guidance provides for administrative review of a denial of a Section 3005(j) retrofitting exemption. CONCLUSION The denial of a retrofitting exemption is not a proper matter for review under 40 CFR § 124.19 because it is not a "final permit decision." Thus, Shell's petition for review is denied. So ordered. IN THE MATTER OF SOUTHWEST SALT COMPANY, GLENDALE, ARIZONA UIC Appeal No. 85-3 ORDER Decided September 8, 1988 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: Southwest Salt Company (Southwest) requests withdrawal of its applications for underground injection control permits for RoachBaker Well No. 1 (Permit No. AZS000000002) and Roach-Baker Well No. 2 (Permit No. AZS000000003), located in Glendale, Arizona. Both wells were initially constructed for the solution mining of salt. By order of April 17, 1987, I granted Southwest's petition for review of the Region's action in denying its request, and asked the parties to file written briefs. After considering the briefs, I have concluded that Region IX erred when it refused to allow Southwest to withdraw its permit applications. Therefore, I am granting Southwest's request to withdraw them. I. BACKGROUND On October 25, 1985, Southwest sent a letter to Region IX withdrawing permit applications it had filed for two underground injection wells located in the Luke salt deposit in Glendale, Arizona, and stating that it wished to plug and abandon the wells. The Region received Southwest's letter after it had issued final permit decisions for the wells but before the effective dates of the permits.1 Both wells had apparently been constructed long before the UIC program 1 Southwest applied for permits on March 26, 1985. Region IX issued final permit decisions on September 30, 1985, effective October 30, 1985. became effective in Arizona,2 and both are currently inactive. The record does not establish when and for how long either well was operational.3 Region IX answered Southwest's letter on November 27, 1985. Its response did not address Southwest's request to withdraw the permit applications, but instead treated Southwest as if it were a permittee. It stated that Southwest may not plug and abandon the wells until EPA received certain information "[p]ursuant to Part I(E)(7) of the above permits." 4 On October 30, 1985, apparently in advance of receiving a written response from EPA to its October 25 letter, Southwest submitted a Petition for Review in which it, inter alia, renewed its request to withdraw its permit applications. Region IX responded to Southwest's Petition on January 23, 1986, stating that the October 25 request to withdraw the permit applications should be denied because (1) it was received after the permits became effective; (2) the UIC regulations "provide a proper mechanism" at 40 C.F.R. § 144.53(b) for Southwest to abandon its wells under its permits; (3) protection of underground sources of drinking water will best be served by requiring Southwest to obtain permits; and (4) Southwest has not shown that the Region committed a factual error or abused its discretion. In granting Southwest's Petition for Review on April 17, 1987, I asked the parties to state their views on the legal status of the wells and Region IX's authority to require Southwest to obtain UIC permits for them. In response, Region IX's brief states that Southwest's wells are currently subject to federal UIC regulations applicable to "injection wells authorized by a rule" within the meaning of 40 C.F.R. Part 144 Subpart C; and that EPA is authorized to compel Southwest Salt to obtain permits for them pursuant to 40 C.F.R. § 144.25, which applies to rule-authorized wells. The Region also relies on 40 C.F.R. § 144.31, which sets forth permitting requirements for wells regardless of whether they have rule-authorization. Brief of Region IX, June 4, 1987, p. 5.5 2 The UIC program became effective in Arizona on June 25, 1984. 40 C.F.R. § 147.151. 3 See discussion at pp. 630-632, infra. 4 Letter from Nathan Lau, EPA Region IX, to Southwest Salt, November 27, 1985. 5 The Region renewed its argument that Southwest's request was not timely because it was submitted after the Region had issued a final permit decision. However it said that it no longer relies on 40 C.F.R. § 144.53(b) as authority for its action. Southwest's brief states that the UIC regulations do not authorize EPA to require the owner or operator of an inactive well to obtain a UIC permit.6 It adds that the State of Arizona is providing adequate supervision of the closure of these wells to protect the groundwater.7 Southwest Salt Brief, June 3, 1985. According to its brief: Southwest's #1 and #2 wells * * were drilled pur- Id. at p. 2. (Emphasis added). Southwest's brief does not discuss either of the two regulations cited by the Region, 40 C.F.R. § 144.25 or 40 C.F.R. § 144.31. However, it sent a letter to EPA on June 26, 1987, reiterating that protection of groundwater "does not require federal intervention," and stating that 40 C.F.R. § 144.25 is inapplicable to the wells because "this appeal does not address 'injection operation,' but rather the plugging and abandonment of two non-operational wells." II. DISCUSSION ** statutory My April 17, 1987 order states that "unless some * or regulatory provision bars Southwest from withdrawing its applications, the Region should have allowed it to do so." Order at p. 8. 6 Southwest states in its brief that it: has committed to plug and abandon these wells in compliance Southwest Salt Brief at 3. It also states in a letter to Region IX, dated October 25, 1985, that: Southwest Salt plans to plug and abandon RB #1 and RB #2 Neither statement makes it clear whether the company intends to comply with 40 7 The Arizona Oil and Gas Commission supports Southwest's position that the wells should be regulated by the state rather than EPA. Letter from Arizona Oil and Gas Commission to EPA, September 9, 1985. |