ELR Citation: ELR 20496
No(s). s. 93-1458 et al (D.C. Cir. Jan 13, 1995)

The court holds that it lacks jurisdiction under §7006(b) of the Resource Conservation and Recovery Act (RCRA) over challenges to the U.S. Environmental Protection Agency's (EPA's) actions authorizing commencement of post-trial burn operations at an incinerator in East Liverpool, Ohio, and subsequently imposing conditions on such operations. Petitioner environmental group seeks review of EPA's April 6, 1993, letter confirming that the operator had satisfied permit conditions for commencement of post-trial burn operations. Petitioner municipality seeks review of EPA's April 12, 1993, letter notifying the operator that it must comply with two additional limitations in its post-trial burn operations. Petitioner municipality also seeks review of EPA's Environmental Appeals Board's (EAB's) June 21, 1993, decision denying administrative review of the April 12 letter for lack of jurisdiction. The court first holds that EPA's letters simply implemented existing conditions of the operator's permit, and finds nothing to suggest that Congress intended the administrative actions that petitioners challenge to fall within the meaning of "issuing, denying, modifying, or revoking a permit" under §7006(b). EPA's April 6 letter confirming the operator's compliance with conditions imposed on January 8, 1993, regarding carbon monoxide and particulate emissions limits, did not authorize post-trial burn operations, but rather implemented the permit issued in 1985, as amended in 1992 and supplemented in January 1993. Similarly, as the EAB concluded, the April 12 letter prohibiting the operator from burning aqueous wastes and limiting the incinerator's total waste feed rate was not a permit modification, because the permit specifically contemplated that EPA might impose additional waste feed restrictions based on the trial burn's results. Although the April 12 letter added specificity to the permit, the original permit contemplated clarifications during the various stages.

The court next holds that neither RCRA nor its accompanying regulations require EPA to issue a new permit or make a permit modification to govern an incinerator's post-trial burn operations. Although the regulations explicitly require EPA to follow the notice-and-comment procedures of 40 C.F.R. §270.42 before setting final permit conditions for the incinerator's operations, they impose no similar burden for the conditions that govern the post-trial burn period, and contain no suggestion that a permit may not allow mid-course corrections within the post-trial burn period. Rather, the regulations anticipate that the permit itself will govern post-trial burn operations and that the incinerator need only comply with permit conditions to proceed from trial burn to post-trial burn operations. The court holds that there is nothing to suggest that the April 6 and April 12 letters did more than implement existing permit conditions in a manner that the permit contemplated. The court rejects the environmental group's contention that because the regulations define a permit EPA issues to implement RCRA requirements as "an authorization, license, or equivalent control document," that the April 6 letter authorizing commencement of post-trial burn operations must be a permit. It would mischaracterize that letter to view it as authorizing posttrial burn operations when the permit's preexisting conditions authorized post-trial burn operations. The court also rejects the group's contention that the EAB's characterization of the April 6 letter arbitrarily creates a loophole allowing EPA to abandon its mandatory duty to impose permit conditions that protect public health and the environment. In seeking review of the April letters, petitioners are challenging the conditions governing post-trial burn operations at the incinerator, and those conditions were not adopted in the contested letters but are contained in the permit as amended. The court holds, therefore, that the April letters do not fall within the scope of reviewable actions under RCRA §7006(b), because the permit included conditions that specifically authorized post-trial burn operations and contemplated that EPA would impose additional restrictions on waste feed based on the trial burn's results, and because these permit conditions were subject to review when adopted. Regarding the municipality's claim that the April 12 letter modified the permit by prohibiting the feed of aqueous waste and limiting the total feed rate into the incinerator, the court reiterates its earlier holding that these terms are no more than new restrictions implementing a preexisting condition in the permit. The court also holds that because EPA was not setting the final permit conditions, notice and comment under 40 C.F.R. §270.42 was not required. The court also finds no basis to support the municipality's contention that the permit provisions allowing the operator to petition for a permit modification and a new trial burn if it failed to meet emissions requirements during the first trial burn bars EPA from imposing additional restrictions based on trial burn results. Finally, the court holds that it lacks jurisdiction to review the EAB decision rejecting the municipality's contention that the April 12 letter modified the permit. The EAB decision does not fall within one of the categories specified in §7006(b), because it did not issue or modify the permit.

[A related decision is published at 23 ELR 20876.]

Counsel for Petitioners
Richard E. Condit
Greenlaw
P.O. Box 77463
Washington DC 20013
(202) 333-1160

Counsel for Respondent
Greer S. Goldman, Seth M. Barsky
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WILLIAMS, GINSBURG, and ROGERS, Circuit Judges.