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Thermalkem, Inc. v. U.S. E.P.A.

filed: June 14, 1994.

THERMALKEM, INC., PETITIONER
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT



Appeal from United States Environmental Protection Agency (RCRA No. 92-4).

Present: Becker, Hutchinson and Cowen, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

Petitioner, ThermalKEM, Inc., the owner and operator of a hazardous waste treatment facility in Rock Hill, South Carolina, petitions for review of the Environmental Appeals Board's ("EAB") dismissal of ThermalKEM's appeal of respondent, United States Environmental Protection Agency's ("EPA"), decision denying ThermalKEM's request to amend its pending permit application. EAB held it lacked jurisdiction to hear EPA Region IV's denial of ThermalKEM's proposed amendment to Part A of its pending permit application.

EPA Region IV had denied the amendment after concluding that it was an attempt by ThermalKEM to alter interim operating status to an extent that required Region IV approval. ThermalKEM argued the proposed amendment would only have permitted ThermalKEM's facility to continue to process waste materials at the same rate it had before EPA's addition of several compounds to the class of substances EPA regulations define as hazardous. ThermalKEM had incinerated these compounds at its treatment facility before their classification as hazardous.

After EAB dismissed ThermalKEM's administrative appeal for lack of jurisdiction, ThermalKEM filed this petition for review. In its petition, ThermalKEM asks us to review EAB's refusal to hear its challenge but not the merits of that challenge. Congress has strictly circumscribed our jurisdiction to review denials of applications for permits to dispose of toxic substances. Therefore, for the reasons given below, we conclude that we lack jurisdiction over the EAB decision dismissing, without consideration of the merits, ThermalKEM's appeal of EPA Region IV's denial of ThermalKEM's proposal to amend Part A of its pending permit application.*fn1

I.

ThermalKEM, Inc. filed this petition for review on June 1, 1993, pursuant to section 7006(b) of the Resource Conservation and Recovery Act ("RCRA" or "Act"), 42 U.S.C.A. § 6976(b) (West Supp. 1994), contesting EAB's refusal to hear, on the merits, ThermalKEM's challenge to EPA's denial of the proposed permit application amendment. ThermalKEM filed its petition for EAB review on January 31, 1992. EAB dismissed ThermalKEM's petition on March 10, 1993, holding it lacked jurisdiction to consider this appeal from the decision of an EPA regional director on ThermalKEM's interim status. See In re ThermalKEM, Inc., RCRA Appeal No. 92-4, slip op. at 4 (Mar. 10, 1993).

ThermalKEM is a Delaware corporation. It owns and operates a hazardous waste facility in Rock Hill, South Carolina, where it disposes of hazardous waste in various ways, including incineration. RCRA governs the treatment, storage and disposal of solid waste in the United States, both hazardous and non-hazardous. Section 3005(a) of the Act, 42 U.S.C.A. § 6925(a), requires an owner or operator of hazardous waste treatment, storage or disposal facilities ("TSDF") to obtain a permit governing the facilities' operation. Realizing that EPA could not possibly issue all necessary permits to all the hazardous waste treatment facilities in the United States as soon as RCRA went into effect, Congress enacted § 3005(e) of the Act, 42 U.S.C.A. § 6925(e), as a transitional measure. Section 3005(e) allows an owner or operator of a facility that was in existence on November 19, 1980, (the effective date of RCRA) to continue operations pending issuance of a final permit so long as two conditions are met. First, the owner or operator of the TSDF must timely notify EPA that it is operating a hazardous waste facility. 40 C.F.R. § 270.70(a)(1) (1992); see also 42 U.S.C.A. § 6930(a). Second, the owner or operator must file "Part A" of a RCRA permit application. See 40 C.F.R § 270.70(a)(2); see also United States (EPA) v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1182 (N.D. Ind. 1989).*fn2 Where an owner or operator meets these two conditions, any TSDF in operation on the relevant date automatically receives "interim status" and "shall be treated as having been issued [a] permit until such time as final administrative Disposition of [the permit] application is made . . . ." 42 U.S.C.A § 6925(e); see also 40 C.F.R. § 270.70(a). The governing regulations explicitly state that interim status is not itself a "permit." 40 C.F.R. §§ 124.2, 270.2 (definition of permit). Moreover, interim status facilities may not process hazardous wastes beyond the treatment capacity specified on Part A of the facility's permit application. If a facility operating on interim status wants to process hazardous substances in a greater amount than it represented it would or could in Part A of its permit application, it must either receive EPA approval, see 40 C.F.R. § 270.72(a)(2), or qualify for an increase with respect to certain wastes that become newly listed or identified after it submits a revised Part A permit application. See 40 C.F.R. § 20.72(a)(1).*fn3 Interim status terminates after the appropriate state and federal regulatory authorities render a final decision on the permit application, when the TSDF fails to timely submit a complete Part B of the application, or when the TSDF fails to comply with the rules governing operation on interim status. 40 C.F.R. § 270.73.

On November 17, 1980, ThermalKEM, through its predecessor, Industrial Chemical Company, Inc., filed the notification 42 U.S.C.A. § 6930(a) requires and Part A of its permit application, thereby complying with the interim procedures in RCRA and achieving interim status. In 1984, Congress amended RCRA by enacting the Hazardous and Solid Waste Amendments Act of 1984 ("HSWA"), Pub. L. No. 616, 98 Stat. 3221 (1984) (codified as amended at 42 U.S.C.A. §§ 6901-6987). HSWA established a time schedule within which interim status facilities were to submit Part B of the permit application. 42 U.S.C.A. § 6925; see also 40 C.F.R. § 270.73. The EPA and South Carolina Department of Health and Environmental Control ("DHEC") asked ThermalKEM to submit Part B of its application in accord with this schedule. In January of 1984, ThermalKEM submitted Part B to both EPA Region IV and the DHEC. In 1985, Congress authorized South Carolina to implement its own hazardous waste program and DHEC took the lead in processing ThermalKEM's application for a permit. Between January 1984 and May 1987, ThermalKEM worked with EPA and DHEC to complete Part B of ThermalKEM's permit application. From time to time during this period, ThermalKEM revised Part A of its permit application to reflect changes in hazardous waste mass feed, pursuant to 40 C.F.R. §§ 270.10(g), 270.70, and 270.72.

In 1987, the DHEC advised ThermalKEM that its permit application was complete and listed it for public inspection and comment. In 1988, the EPA and DHEC approved the ThermalKEM application and issued an operating permit for the facility for one incinerator unit. Subsequently, two citizens' groups formally protested issuance of the permit. Their protests automatically put the TSDF back on interim status until the protests were resolved. That has not yet occurred and ThermalKEM remains on interim status.

On September 25, 1990, EPA's "organic toxicity characteristics" rule ("OTC rule") became effective.*fn4 ThermalKEM concluded that the OTC rule redefined as hazardous a number of previously non-hazardous substances it handled at its facility. Believing its Part A application was no longer correct under the OTC rule, ThermalKEM filed a revised Part A on September 21, 1990, pursuant to 40 C.F.R. § 270.12. The revision identified the newly classified substances and showed a feed rate increase from 2.85 to 5.35 tons per hour. Sixteen months later, on January 8, 1992, EPA Region IV notified ThermalKEM that its revised Part A application was a request to increase interim status incineration which required justification and EPA approval in accord with 40 C.F.R. § 270.72(a)(2). EPA also concluded that ThermalKEM's request to increase its hazardous burning rate should be denied unless ThermalKEM produced evidence of "trial burns" establishing that the increases were safe.*fn5 Accordingly, EPA denied the Part A amendment.

On January 31, 1992, ThermalKEM petitioned the Administrator of the EPA for review of the denial of the revised Part A.*fn6 On March 10, 1993, EAB, acting on behalf of the Administrator under a regulatory delegation, see 40 C.F.R. ยง 124.19(a) (1992), concluded it lacked jurisdiction to hear the ...


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