Vickery Environmental, Inc. (Board decision, March 6, 2020)

Plain-English summary

Vickery Environmental, Inc. petitioned the Environmental Appeals Board to review a hazardous waste management permit issued by EPA Region 5, objecting to permit conditions concerning air emissions standards. Before the Region filed its response, it asked the Board to acknowledge its withdrawal of the permit and dismiss the petition because it planned to revise and reissue the permit. Vickery agreed to that request. The Board concluded that the Region could withdraw the permit under 40 C.F.R. § 124.19(j), acknowledged the withdrawal, and dismissed the petition. The order does not impose a penalty, and it states that the new permit must proceed through the same public-comment and hearing process as other draft permits.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6 and 124.19(j)
• Outcome: The Board acknowledged EPA Region 5's withdrawal of the permit and dismissed the petition for review.
• Key point: A permitting region may withdraw a permit before filing its response to a petition for review and then prepare a new draft permit through the required public process.

Full text (EPA EAB public release)

F I L E D
Mar 06 2020

Clerk, Environmental Appeals Board

INITIALS ______
ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.

In re:
Vickery Environmental, Inc.
Permit No. OHD 020 273 819

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RCRA Appeal No. 19-01

ORDER DISMISSING PETITION FOR REVIEW
On October 7, 2019, Vickery Environmental, Inc. (“Vickery”) filed a petition before the Environmental Appeals Board (“Board”) seeking review of a hazardous waste management permit issued under the Resource Conservation and Recovery Act (“RCRA”) by U.S. EPA Region 5 (“Region”). In its petition, Vickery objected to certain permit conditions relating to various air emissions standards. See Petition for Review at 1-3. The Board, in response to the parties’ joint motions, twice extended the deadline for the Region to file a response to the petition. See Order Granting Extension of Time and Establishing Briefing Schedule (Nov. 1, 2019) (Docket No. 4); Order Granting Second Motion for Extension of Time (Dec. 27, 2019) (Docket No. 10). The current response deadline is March 9, 2020. On March 5, 2020, the Region requested that the Board remand the Permit to the Region and dismiss this Petition, stating among other things that the Region has determined that revision of the challenged permit conditions is appropriate. See EPA Region 5’s Unopposed Motion for Voluntary Remand and Joint Motion to Dismiss (“Motion”) at 3 (citing 40 C.F.R § 124.19(j)). Under the regulations governing this appeal, the Region “at any time prior to 30 days after [it] files its response to the petition for review * * * may, upon notification to the

Environmental Appeals Board and any interested parties, withdraw the permit and prepare a new draft permit under §124.6 addressing the portions so withdrawn.” 40 C.F.R. § 124.19(j). In this case, the Region has not yet filed its response to the petition and, thus, may unilaterally withdraw the permit as sought. Id. Here, the Region has clearly expressed its intent to withdraw the permit, and to revise and reissue the final permit addressing the issues raised in the Petition for Review. See Motion at 3. Vickery concurs with the motion. Id. For these reasons, the Board concludes that the Region seeks to withdraw the permit and that dismissal of the Petition for Review is appropriate. The Board therefore acknowledges the Region’s withdrawal of the Permit as sought and DISMISSES the Petition for Review in RCRA Appeal No. 19-01. Under 40 C.F.R. § 124.19(j), when the Region issues a new draft permit under § 124.6, “the new permit must proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this part.” So ordered. 1

ENVIRONMENTAL APPEALS BOARD

Dated: March 6, 2020

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By: _____
Mary Kay Lynch
Environmental Appeals Judge

The three-member panel deciding this matter consists of Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch, and Kathie A. Stein.
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CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Order Dismissing Petition for Review in the matter of Vickery Environmental, Inc., RCRA Appeal No. 19-01, were sent to the following persons in the manner indicated: By Electronic Mail: Attorney for EPA Region 5: Thomas J. Martin Office of Regional Counsel, Region 5 U.S. Environmental Protection Agency 77 W. Jackson Blvd. (C-14J) Chicago, IL 60604 312-886-4273 [email protected] Attorney for Petitioner Vickery Environmental, Inc.: Joseph P. Koncelik Tucker Ellis, LLP 950 Main Ave., Ste. 1100 Cleveland, OH 44113-7213 216-592-5000 [email protected] Stephen Lonneman General Manager Vickery Environmental, Inc. 3956 State Route 412 Vickery, OH 43464 [email protected] Courtesy Copy to: John Michaud Associate General Counsel USEPA Headquarters William Jefferson Clinton Building 1200 Pennsylvania Avenue, N. W. Rm # 7449A Washington, DC 20004 [email protected] Dated: March 6, 2020

Eurika Durr
Clerk of the Environmental Appeals Board