ELR Citation: ELR 21094
No(s). 93-3249 (3d Cir. Jun 14, 1994)

The court holds that it lacks jurisdiction to review the U.S. Environmental Protection Agency (EPA) Environmental Appeals Board's (EAB's) dismissal of an appeal of an EPA decision that denied a facility's request to amend its Resource Conservation and Recovery Act (RCRA) permit application. A corporation that owns and operates a facility that incinerates hazardous waste sought to amend its RCRA permit to reflect the correct amount of hazardous waste it was incinerating after EPA listed several previously nonhazardous wastes as hazardous. EPA denied the proposed permit application amendment, and the EAB dismissed the corporation's petition for review for lack of jurisdiction. The court holds that case law requires it to review EPA actions that effectively terminate a petitioner's permit and on which the Agency will not act further, but that the EAB's dismissal is not the functional equivalent of a permit denial. EPA had not terminated the permit, and the corporation's facility remains an interim status facility. To be functionally equivalent to a permit denial, and hence reviewable in a court of appeals, a change in interim status must terminate hazardous waste disposal and leave a petitioner no alternatives in seeking EPA approval to engage in regulated activity. A partial termination does not stop a facility from operating, nor does it conclude EPA consideration of the matter. Review of every EPA decision that alters interim status and the ensuing availability of piecemeal review would contravene the fundamental policy of judicial efficiency that underlies the finality that is a condition of judicial review. The court accordingly holds that it lacks jurisdiction to review the EAB's order dismissing the corporation's appeal from EPA's decision.

Counsel for Plaintiff
Stephen P. Kennedy
707 Ridge Rd., Ste. 204, Munster IN 46321
(219) 836-8800

Counsel for Defendant
Jane B. Amdahl, Joseph Van Bokkelen
Goodwin, Ball & Van Bokkelen
3737 45th St., Highland IN 46322
(219) 924-9200

Before Becker and Cowen, JJ.