The Geon Company

Plain-English summary

The Geon Company manufactured synthetic resins at a facility in Pedricktown, New Jersey. After Geon formed a joint venture with Occidental Chemical Corporation, the New Jersey Department of Environmental Protection required one Title V operating permit application covering both facilities because it found Geon had common control of the joint venture. The Environmental Appeals Board held that it could not review this determination because NJDEP was operating under the state Title V program rather than a delegated federal program. The Board also noted that, even under Geon's theory, review was unavailable before a final permit decision. The order did not address a civil penalty.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 7661, 7661a, and 7661f; 40 C.F.R. pts. 70 and 71, including §§ 71.1, 71.4, 71.10, and 71.11.
• Outcome: The petition for review was dismissed for lack of EAB jurisdiction.
• Key point: EAB review under the federal Title V program does not extend to a state agency's own Title V program determination.

Full text (EPA EAB public release)

        BEFORE THE ENVIRONMENTAL APPEALS BOARD
    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                   WASHINGTON, D.C.



                         )
                         )

In the Matter of: )
)
The Geon Company ) CAA Appeal No. 00-7
ID No. NJ0008 )
)
)
)

          ORDER DISMISSING PETITION FOR REVIEW


On May 18, 2000, the Geon Company (“Petitioner”) filed this

Petition for Review with the U.S. Environmental Protection Agency’s

Environmental Appeals Board (“Board”), citing 40 C.F.R. § 71.11(l) as

the jurisdictional basis for the petition. Petitioner seeks review

of a New Jersey Department of Environmental Protection (“NJDEP”)

determination that Petitioner “had <common control’ of a joint

venture” and that Petitioner was required to file a single operating

permit application covering both Geon’s and the joint venture’s

facilities. See Petition for Review (“Petition”) at 1. For the

reasons discussed below, the Petition for Review is dismissed.
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                          I.   BACKGROUND



Petitioner is a manufacturer of synthetic resins, more

specifically, dispersion resins. Petition, att. J, at 2.

Petitioner’s manufacturing facility is located in an industrial park

in Pedricktown, New Jersey. Id., att. L. Petitioner was issued a

facility-wide permit by the NJDEP on January 30, 1997.

In accordance with Title V of the federal Clean Air Act, 42

U.S.C. §§ 7661-7661f, Petitioner sought to obtain a Title V operating

permit on or about January 1998. Id., att. A. NJDEP informed

Petitioner that its facility-wide permit could serve as its Title V

permit application. Id. Petitioner submitted its Title V operating

permit application on March 16, 1998, and NJDEP informed Petitioner

that its application was administratively complete by letter dated

May 18, 1998. Id. NJDEP also informed Petitioner that copies of

Parts A and B of its permit application, and certain forms, should be

sent to the U.S. Environmental Protection Agency Region II (“Region

II”). Id.

In early 1999, Petitioner entered into a joint venture, named

Oxy Vinyl, L.P. (“Oxy Vinyl”), with Occidental Chemical Corporation

(“Occidental”). Id., atts. C and D. Oxy Vinyl was to operate a
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portion of the Geon facility at Pedricktown, New Jersey. Petitioner

then sought to obtain separate Title V operating permits -- one for

Petitioner’s portion of the facility, and one for Oxy Vinyl’s

facility. Id. However, NJDEP, in consultation with Region II,

determined that Petitioner “had <common control’ of a joint venture”

and that Petitioner was thus required to file a single operating

permit application covering both Petitioner’s and Oxy Vinyl’s

facilities. Id., att. G.

 Petitioner sought reconsideration by NJDEP, but NJDEP declined

to change its decision. Id., att. K. The contested determination

was memorialized in a final letter from NJDEP to Petitioner dated

April 11, 2000. Id. This Petition for Review followed.

                        II.   DISCUSSION

A. Statutory and Regulatory Framework

 The U.S. Environmental Protection Agency (“EPA”) implements the

federal Title V operating permits program pursuant to Title V of the

Clean Air Act (“CAA”). 42 U.S.C. §§ 7661 - 7661f. The CAA requires

that the EPA promulgate regulations governing the minimum elements of

a Title V operating permit program. See 42 U.S.C. § 7661a(b). The
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regulations establishing these requirements are found at 40 C.F.R.

parts 70 and 71. The part 70 regulations establish requirements for

approval of state operating permits programs implementing the Title V

permit program requirements. Part 71 establishes the federal

operating permits program administered in the absence of an approved

State program for the area in which the source is located.

B. The Board Lacks Jurisdiction to Consider the Petition

 This Petition must be dismissed because the Board lacks

jurisdiction to consider the determination by NJDEP that Petitioner

had “common control” of Oxy Vinyl and thus was required to submit a

single Title V operating permit application covering both

Petitioner’s and Oxy Vinyl’s facilities. Petitioner seeks review

under 40 C.F.R. section 71.11(l) which provides in pertinent part:

 (1) Within 30 days after a final permit decision has been

 issued, any person who filed comments on the draft permit

 or participated in the public hearing may petition the

 [Board] to review any condition of the permit decision.

40 C.F.R. § 71.11(l).
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Petitioner relies upon a provision contained within 40 C.F.R.

part 71, which part is entitled “Federal Operating Permit Program.”

Part 71 applies only to Title V operating permits issued by EPA, see

40 C.F.R. §§ 71.1(a), 71.4, and State, local, tribal, and other non-

State agencies that have been delegated federal authority pursuant to

40 C.F.R. § 71.10. NJDEP is not a delegated State agency; rather, it

has been granted interim authority to conduct a State Title V

operating permit program under 40 C.F.R. part 70. See 40 C.F.R. part

70, app. A (Approval Status of State and Local Operating Permits

Programs). Thus, section 71.11(l) is inapplicable because NJDEP is

not a delegated State implementing a federal Title V operating

permits program, but rather conducts its own State Title V operating

permits program under part 70 in accordance with the interim

authorization from EPA. The Board lacks jurisdiction to review

permits issued by authorized State permit programs. See In re

Kawaihae Cogeneration Proj., 7 E.A.D. 108, 110 n.5 (EAB 1997) (Where

a single CAA permit contains requirements implementing both an

approved State Title V Program and the federal Prevention of

Significant Deterioration Program, the Board’s jurisdiction extends

only to review of the part of the combined permit implementing the

federal program).1

 1We note that even if NJDEP were a delegated agency and section

71.11(l) applied, the Board would still lack jurisdiction at this
time because NJDEP has not yet issued a final permit decision in this
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Accordingly, the Petition for Review is dismissed.



So ordered.



                              ENVIRONMENTAL APPEALS BOARD

Dated: 6/1/00 By: /s/
Edward E. Reich
Environmental Appeals Judge

case. As outlined above, a petition may be filed only “after a final
permit decision has been issued.” 40 C.F.R. § 71.1(l)(1).
 CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order Dismissing

Petition for Review in the matter of the Geon Corporation, CAA Appeal
No. 00-7, were sent to the following persons in the manner indicated:

Certified Mail
Return Receipt
Requested:

                        James Stewart, Esq.
                        Lowenstein Sandler PC
                        65 Livingston Avenue
                        Roseland, New Jersey 07068

Dated: 6/1/00 /s/
Annette Duncan
Secretary