By petition submitted under 40 CFR § 124.19, Navajo Refining Company seeks review of a RCRA permit issued by Region VI for Navajo's oil refinery in Artesia, New Mexico. The Petition challenges certain permit conditions that require corrective action under RCRA § 3004(u) for a drainage ditch and three evaporation ponds. Navajo has used these units since the 1930s to manage wastewater from its refining operations. The ditch runs across land not owned by Navajo. With the owners' permission, Navajo has used the ditch to transport substantial amounts of wastewater and drainage on a daily basis from the rest of the facility to the evaporation ponds. The ponds cover about eighty acres and are located on property owned by Navajo about three miles from the rest of the refinery. Navajo argues that the ditch and ponds are not part of its "facility" and therefore not subject to corrective action under RCRA § 3004(u), which by its terms applies only to releases from units "at a ** facility seeking a permit" under Subchapter III of RCRA. 42 U.S.C.A. § 6924(u) (West Supp. 1988). The word "facility" is not defined in RCRA. As one might expect with such a general term, its precise meaning is not uniform throughout the statute but instead depends upon the context in which it is used. See Mobile Oil Corp. v. EPA, 29 Env't. Rep. Gas. (BNA) 1385, 1387 (D.C. Cir. April 4, 1989). As used in Section 3004(u), "facility" encompasses the broadest possible extent of the Agency's area jurisdiction under Section 3004. See 50 Fed. Reg. 28,712 (July 15, 1985). As interpreted by the Agency, "facility" in RCRA § 3004(u) is not limited to those portions of the owner's prop- Id. (emphasis added); see also United Technologies Corp. v. EPA, 821 F.2d 714 (D.C. Cir. 1987) (upholding Agency's reading of “facility” as used in RCRA § 3004(u)). Applying this interpretation, Navajo argues that the ditch is outside of its control because it does not own the ditch and has no right to exclude others from using this property. It contends that the ponds are not contiguous to its refinery because they are three miles away and separated from it by land owned by others. The Region contends that Navajo controls the ditch because Navajo has used it to transport wastewater for more than fifty years. It views the ponds as contiguous to, and thus a part of, the facility because they are physically connected to the rest of the refinery by the ditch. It is beyond cavil that the ditch is contiguous to the rest of the refinery, that the ponds are contiguous to the ditch, and that Navajo owns and controls the ponds. The issue reduces to whether Navajo exercises sufficient control over the ditch; if so, then the ditch and the adjoining ponds are contiguous land under its control and thus part of its "facility" under RCRA § 3004(u). Application of the contiguity and control criteria to define the scope of a facility under RCRA § 3004(u) should be guided by the meaning of the word "facility" itself, which the criteria merely serve to explicate. "Facility" is an expansive term which generally denotes anything built, installed, or established to serve a particular purpose.1 Region VI found adequate control here by focusing on Navajo's longstanding ability to use the ditch as part of its overall refining operations, specifically, to transport the refinery's wastewater to its evaporation ponds. This functional and temporal application of the control criterion is entirely consistent with the meaning of "facility." Navajo's use and control of the ditch is integrally related to the overall purpose of its refinery, and it does no violence to the statutory language to consider the ditch (and adjoining ponds) part of that 1See Webster's Ninth New Collegiate Dictionary, at 444 (1986) (definition 4b of "facility"); Black's Law Dictionary, at 531 (1979); cf. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 860 (1984) (“The ordinary meaning of the term 'facility' is some collection of integrated elements which has been designed and constructed to achieve some purpose.") facility for purposes of RCRA §3004(u). Indeed, the record shows that Navajo itself has described the ponds as units "at [its] facility."2 Navajo does not assert, and the record before me fails to show, that Navajo's lack of legal title to the ditch will impede its efforts to remediate any releases caused by its use of the ditch. Given the narrowness of the ditch, it might become necessary to undertake corrective action beyond the precise boundaries of the facility (i.e. the ditch, the ponds, and the rest of the refinery) if on-site action is inadequate to protect human health and the environment. RCRA §3004(v) authorizes such off-site action unless Navajo, despite its best efforts, is unable to obtain the necessary permission to undertake such action. See 42 U.S.C.A. §6924(v). Requiring Navajo to address any release from the ditch, however, is no different from requiring corrective action by other non-owner operators, the propriety of which is undisputed. If, on the other hand, the scope of a "facility" were coterminous with the right to exclude (as Navajo contends), a permittee could easily circumvent RCRA § 3004(u) by deliberately arranging to manage its solid waste on contiguous land owned and shared by others. This reading would undermine the broad remedial purpose of RCRA § 3004(u), is inconsistent with the expansive meaning of "facility," and is therefore rejected.3 CONCLUSION For the reasons set forth above and based on the record before me, Navajo's petition for review is denied. So ordered. 2 Response to Early Enactment Provisions of the Hazardous and Solid Waste Amendments of 1984, at Attachment 2 ("Information Regarding Potential Releases from Solid Waste Management Units"), Questions 1 & 2 and responses (Attachment 18 to Region VI's July 15, 1988 Response to Navajo's Petition); see also Letter from Navajo to Region VI, item 2 (March 27, 1986) (Attachment 9 to Region VI's Response to Navajo's Petition) (describing ditch and ponds as “units at the refinery"). 3 Navajo further argues that application of RCRA § 3004(u) to the ditch and ponds is "regulatorily redundant" because this land is already regulated by the New Mexico Oil Conservation Division. Petition at 3-4. As Region VI has stated, however, inclusion of this property in the facility permit is necessary to ensure that corrective action for these units is consistent with the demands of RCRA § 3004(u). See Response to Comments at 2, Response 5 (attached to Navajo's Petition). Navajo's Petition raises two other issues, but these have been resolved by the parties through settlement negotiations. IN THE MATTER OF HIBBING TACONITE COMPANY PSD Appeal No. 87-3 ORDER ON REVIEW Decided July 19, 1989 Before the Administrator, U.S. Environmental Protection Agency Opinion by William K. Reilly, Administrator: In a petition dated July 30, 1987, U.S. EPA Region V seeks review of a Prevention of Significant Deterioration (PSD) permit determination that authorizes the Hibbing Taconite Company (Hibbing) to modify its furnaces to burn petroleum coke as a fuel. A final decision to issue the permit was made on July 2, 1987, by the Minnesota Pollution Control Agency (MPCA), pursuant to a delegation of authority from Region V.1 MPCA's action in issuing the permit is subject to the review provisions of 40 CFR § 124.19 because the permit is deemed to be an EPA-issued permit under EPA rules. 40 CFR § 124.41; 45 Fed. Reg. 33,413 (May 19, 1980) In its petition for review, Region V raises seven issues: (1) whether Ribbing's analysis of Best Available Control Technology (BACT) for sulfur dioxide (SO2) is erroneous; (2) whether Hibbing failed to perform a collateral impacts analysis on unregulated pollutants as required by North County Resource Recovery Associates, PSD Appeal No. 85-2 (Admin. June 3, 1986); (3) whether the permit violates section 165 of the Clean Air Act (CAA or Act) by allowing Hibbing to modify its facility and operate for nine months without a prescribed emission limit for SO2; (4) whether the permit limit of 0.024 grains per dry standard cubic foot (gr/dscf) represents BACT for particulate matter (PM); (5) whether Hibbing improperly excluded its property from the ambient air quality modeling; (6) whether analysis of alter 1 The PSD program was delegated to the State of Minnesota on October 15, 1980, under the authority of 40 CFR §52.21(u). See Letter from John McGuire, Regional Administrator, EPA Region V, to Terry Hoffman, Executive Director, MPCA (October 15, 1980). native control technologies is required for carbon monoxide (CO) emissions and whether the permit must contain operating requirements for combustion of CO; and (7) whether Hibbing improperly relied on existing data from distant monitors to meet the preconstruction monitoring requirements under 40 CFR § 52.21(m)(1).2 For the reasons set forth below and pursuant to 40 CFR § 124.19, review of issues (2), (6), and (7) is denied. Issues (1), (3), (4), and (5) are remanded to MPCA to conduct additional BACT analyses and to determine the portion of the Hibbing property (if any) that should be excluded from the ambient air determination, consistent with this opinion. BACKGROUND Hibbing's plant crushes taconite ore, concentrates the iron in the resulting powder, and forms it into pellets for shipment to a primary steel plant. The taconite plant equipment includes ore crushers, concentrating process lines, and pelletizing furnaces. The plant currently uses venturi rod scrubbers as a pollution control technology. Until recently the furnaces burned only natural gas and fuel oil. Now Hibbing plans to switch to petroleum coke as a fuel, thus requiring a physical modification of the plant. The modification will bring Hibbing under the purview of the CAA's PSD requirements for the first time.3 Hibbing has submitted a PSD applicability analysis that shows the proposed modification is subject to PSD requirements for emissions of SO2, CO, and PM.4 2 Both Hibbing and MPCA have filed responses to the Region's petition for Review. See Comments of Hibbing Taconite Company on the EPA Region V Petition for Review of Minnesota Permit No. 541-87-OT-1 (PSD Appeal No. 87-3) (December 30, 1987); Minnesota Pollution Control Agency, Division of Air Quality, Response to U.S. EPA Region V's Petition for Review of Permit No. 541-87-OT-1 Issued to Hibbing Taconite Co. (September 28, 1987). Hibbing's attorney sent a letter dated January 5, 1988, concerning a curtailment of natural gas to the Hibbing plant. For purposes of deciding the issues on appeal, there is no need to consider the matters raised in that letter. 3 The Hibbing facility was constructed between 1973 and 1977. The PSD requirements of the CAA apply only to facilities on which construction was commenced after August 7, 1977. 42 U.S.C. §7475. 4 Before an existing major emitting facility located in an area that is meeting the National Ambient Air Quality Standards (NAAQS) can undertake a major modification, i.e., one which would result in a significant net emissions increase of a regulated pollutant, the owner must obtain a PSD permit. 40 CFR §52.21(b)(2)(i). Hibbing is located in an area designated as being in attainment of the NAAQS for SO2, CO, Continued |