been conducting the tests to comply with some other legal requirement such as Pennsylvania's solid waste statute. Id. at 25, 90-91. In addition, M&I's RCRA violations contravene a consent agreement that it entered into with Pennsylvania that is designed to reduce the possibility of migration of hazardous waste into the groundwater. Id. at 34. M&I has done little to either determine whether its hazardous waste has contaminated the groundwater or to avert future contamination. In these circumstances, a reduction in penalty for good faith efforts to comply with RCRA is unwarranted. Accordingly, the initial decision is affirmed in all respects. Respondent shall comply with the order set forth in Judge Greene's June, 30, 1987 initial decision. So ordered. IN THE MATTER OF TECRONEY, INC. UIC Appeal No. 87-4 ORDER DENYING REVIEW Decided November 2, 1988 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: The Regional Administrator, EPA Region II, issued a final underground injection control permit to Tecroney, Inc. of Celeron, New York, on May 15, 1987, pursuant to the Safe Drinking Water Act, 42 U.S.C. 300f et seq. (1974), as amended, and implementing regulations. The permit authorizes the construction and operation of an underground injection well for the purpose of brine disposal at the Tecroney facility in Clymer, New York. Several individuals and the Town of Clymer, New York, filed petitions pursuant to 40 C.F.R. § 124.19(a) requesting that I review the Region's decision to issue the permit. For the reasons stated below, the petitions are denied. 1. BACKGROUND Tecroney, Inc. filed an application for a Class II permit for Tecroney Injection Well #1 on January 22, 1987. Region II published a notice of the issuance of a draft permit in the Federal Register on February 27, 1987, which provided that public comments on the draft permit must be received by April 8, 1987. The notice further provided for two public hearings on the proposed permit on the afternoon and evening of April 1, 1987. After conducting the public hearings and reviewing comments, Region II issued a final permit to Tecroney, Inc. on May 15, 1987. Petitions for review of the final permit decision were filed on June 15, 16, 17, and 18 and July 7, 1987.1 1 1 Petitions were received from the following individuals: Mr. and Mrs. Donald Croscutt (June 15, 1987); Mike and Nonna Laver (June 16, 1987); Ruth Damcott Continued II. DISCUSSION The Safe Drinking Water Act and implementing regulations do not provide a right to obtain review of a UIC permit decision. 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). Thus, it is the Agency's clear intent that a petition shall be granted only if the petitioner is in strict compliance with regulatory requirements. In the Matter of Gelman Science, Inc., UIC Permit Appeal No. 86-14 (November 6, 1987), p. 2. The regulations establish substantive grounds for review and also impose procedural requirements that a petitioner must follow to obtain review. Generally, petitions will not be granted unless the permit determination is clearly erroneous or involves an exercise of discretion or policy that is important and should be reviewed as a discretionary matter. 40 C.F.R. § 124.19(a). A petition seeking general review of a final permit (in contrast, for instance, to one in which review is restricted, by regulation, to any changes in the permit occurring after issuance of the draft permit decision) 2 may be filed only by a "person who filed comments on [the] draft permit or participated in the public hearing * *." Id. The petition must include "a statement of the reasons supporting review" and a demonstration that each issue raised in the petition had been raised during the comment period. Id. Section 124.13 elaborates upon the latter requirement. It is titled "Obligation to raise issues and provide information during the public comment period" and provides that: * All persons * * * who believe * * * that the Direc- (June 16, 1987); Mrs. Darwin Damcott (June 17, 1987); and James E. Caflisch (July 7, 1987). The Town of Clymer filed a petition on June 18, 1987. 2 Pursuant to 40 CFR § 124.19(a), a person who failed to file comments on the draft permit or participate in the public hearing "may petition for administrative review only to the extent of the changes from the draft to the final permit decision." No changes were made to Tecroney's permit after the Region made the draft permit decision. The regulation allows the Regional Administrator to extend the comment period when necessary "to give commenters a reasonable opportunity to comply" with these regulations. Id. None of the petitioners for review of the Tecroney permit has demonstrated compliance with the requirements of 40 C.F.R. §§ 124.13 and 124.19(a). Therefore, I am denying all of the petitions. The individual petitioners all failed to submit written comments on the draft permit or to participate in either public hearing. Therefore, they lack standing to petition for general review of the final permit decision.3 * The Town of Clymer also petitioned for review of the permit decision.4 Since Deputy Supervisor Roger Holthous testified on behalf of the town at the public hearing, the Town is a "person who * participated in the public hearing," and therefore has standing to petition for general review of the permit.5 However, the Town's petition does not raise any issues that meet the requirements of 40 C.F.R. §§ 124.13 and 124.19(a), and therefore, it is denied. The Town raises eight issues in its petition. With respect to six of them, the Town has not demonstrated, as required by the 3 The petition filed by Mr. James Caflisch is also untimely since it was not filed within 30 days from the service of notice of the final permit decision, as required by 40 C.F.R. § 124.19(a). 4 Several pages full of citizen signatures, each headed by a brief request for review of the permit decision, are appended to the Town's petition. Since the record contains no evidence that any of the persons who signed these documents commented on the draft permit or participated in the public hearing, these requests for review are denied. 5 Pursuant to 40 C.F.R. § 124.19(a), an individual has 30 days from the issuance of a final permit decision to petition for review. As I read this regulation, a petition received after the deadline expires is untimely, for there is nothing in the regulations to suggest that anything other than actual delivery on or before the expiration date is sufficient to perfect a timely appeal. The Director of the Water Management Division, Region II, was therefore mistaken when he notified commenters that appeals would be timely if postmarked within the 30-day period. Computed in accordance with 40 C.F.R. § 124.20(d) (which adds three days to the 30-day period whenever, as here, the permit decision is served by mail), the 30-day appeals period on this permit expired on June 17, 1987. Since the Town's petition was not received until June 18, 1987, it was not timely. However, I am not denying the petition on this ground, due to the possibility of estoppel arising from the erroneous notice given to commenters. 6 The Town claims that: Continued regulations, that they were raised during the comment period. See 40 C.F.R. § 124.19(a). Therefore, these issues are not eligible for consideration on appeal. Mr. Holthous alluded to the other two issues at the public hearing. However, his testimony was so brief and so general that it only minimally (if at all) satisfies the requirement of 40 C.F.R. § 124.33 that a petitioner raise “all reasonably ascertainable issues" during the comment period. Even assuming that the Town had satisfied this regulatory requirement, its request for review of these issues would still be denied because it failed to demonstrate with respect to any of them that the Region made a clear error of fact or law or exercised its discretion in a manner warranting review. First, petitioner claims that the well penetrates an underground source of drinking water (USDW) and that "there has been no study of the effects that the well may have on the aquifer or local water sources."8 Petition, Para. 3(a). The Region acknowledges that the (1) "[T]here has been no comprehensive study of the possible ef- (2) The permit does not protect against human error by requiring (3) There has been inadequate study of the possibility of seepage (4) Petitioners should be required to submit current logs to enable (5) Injected brine may migrate beyond the predicted production (6) Region II should be required to prepare an environmental 7 Mr. Holthous' testimony makes no reference to any of these six issues and the Regional response to the petition characterizes paragraphs 3(b), 3(d), 3(g) and 4 of the petition (see note 6, supra) as raising "new issues." Regional Response, p. 6. Although the Region suggests that the Town "arguably" has standing to raise the issues set forth in paragraphs 3(e) and 3(f), I can find no basis in the record for concluding that either of these issues was raised during the comment period. 8 The only reference to this issue in Mr. Holthous' testimony is his statement that: * The Town Board is concerned about using this well as a brine disposal [because] ** the water supply where the town well is located is fed from an underground lake, river, stream or whatever that goes near where the proposed brine dump is located. (Tr. at 100.) |