Ciba-Geigy Corporation and Hercules, Inc. (Board decision, April 7, 1992)

Plain-English summary

EPA Region II issued Ciba-Geigy Corporation and Hercules, Inc. a permit for the federal portion of a Resource Conservation and Recovery Act permit under the 1984 Hazardous and Solid Waste Amendments. The petitioners argued that the permit should automatically terminate if New York State later received authorization to administer its HSWA program, and that EPA abused its discretion by issuing federal corrective-action requirements that overlapped with the State portion of the permit. The Environmental Appeals Board held that RCRA and its regulations did not require an automatic-termination provision and that permit-administration matters should be handled through a memorandum of agreement between EPA and the State. It also held that the Region was required to administer the HSWA program until State authorization and did not abuse its discretion by issuing the federal portion.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19 and 271.8; 42 U.S.C. §§ 6901, 6924, and 6926
• Outcome: Review was denied on both issues, leaving the federal HSWA permit in place.
• Key point: EPA must administer the federal HSWA program until a State is authorized, even if the State permit contains overlapping corrective-action requirements.

Full text (EPA EAB public release)

CIBA-GEIGY CORPORATION AND HERCULES, INC. 3

IN THE MATTER OF CIBA-GEIGY CORPORATION AND
HERCULES, INC.

RCRA Appeal No. 91-28

ORDER DENYING REVIEW

Decided April 7, 1992

Syllabus

The Environmental Protection Agency, Region II, issued a permit to Petitioners, CIBA-GEIGY Corp. and Hercules, Inc., under the 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act of 1976 (RCRA). Petitioners seek review on two grounds. First Petitioners contend that the HSWA permit is defective because it fails to provide for its automatic termination upon authorization of New York State's HSWA program. Second, Petitioners argue that because the HSWA permit contains similar or identical requirements to those in the State portion of the RCRA permit, the Region abused its discretion in issuing the permit.

Held: First, nothing in RCRA or its implementing regulations requires that a HSWA permit specifically provide for its termination upon State authorization. Matters relating to the administration of federally-issued permits should be handled in a Memorandum of Agreement between the Agency and the State. Second, issuance of the HSWA permit was consistent with RCRA and its implementing regulations, and Petitioners have failed to establish any abuse of discretion. Review is therefore denied on both issues.

Before Environmental Appeals Judges Ronald L.
McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion by Judge Reich:

CIBA-GEIGY Corporation and Hercules, Inc. (Petitioners) seek review of the federal portion of a permit issued to Petitioners by Region II under the 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act of 1976 (RCRA).¹ Specifically, Petitioners contend that the Region's failure

¹The non-HSWA portion of the permit was issued by New York, an authorized State under RCRA § 3006(b), 42 U.S.C. § 6926(b). New York State is seeking authoriza- tion to operate its HSWA program in lieu of the Federal program.

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to include a permit provision providing for the automatic termination of the federal HSWA permit upon authorization of New York State's HSWA program amounts to an error of law and renders the permit defective. Petition for Review at 15-16. Petitioners also argue that because the permit issued by Region II contains many of the same corrective action requirements as those required under the State por- tion of the RCRA permit,² it was an abuse of discretion for the Region to issue a separate corrective action permit. Id. at 16. As requested by the Agency's Judicial Officer,³ Region II submitted rel- evant portions of the administrative record and a response to the petition. For the reasons set forth below, we conclude that Petitioners have failed to show that review of the permit is warranted under 40 C.F.R. § 124.19, and therefore review is denied.

Under the rules governing this proceeding, a RCRA permit deter- mination ordinarily will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 C.F.R. § 124.19; 45 Fed. Reg. 33,412 (May 19, 1980). The preamble to § 124.19 states that “this power of review should be only sparingly exercised,” and that “most permit conditions should be finally determined at the Regional level * * *.” Id. The burden of demonstrating that review is warranted is on the petitioner. See 40 C.F.R. § 124.19. Petitioners have not met this burden.

Although Petitioners are correct that, upon authorization of the State HSWA program, New York State may administer the State HSWA program in lieu of the Federal HSWA program,⁴ nothing in RCRA or its implementing regulations indicates that the federal per- mit must provide for its automatic termination upon State authoriza- tion. The regulations indicate that matters relating to the administra- tion of federally-issued permits are to be handled by Memorandum of Agreement between the Agency and the State.⁵ Review is therefore denied on this issue.

²Although New York State has not been authorized to administer the HSWA program, the State portion of the RCRA permit includes corrective action requirements.

³At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. 57 Fed. Reg. 5321 (Feb. 13, 1992).

⁴RCRA § 3006(g), 42 U.S.C. § 6926(g).

⁵40 C.F.R. § 271.8(b)(6) provides, in part:

When existing permits are transferred from EPA to the State for administration, the Memorandum of Agreement shall contain

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CIBA-GEIGY CORPORATION AND HERCULES, INC. 5

provisions specifying a procedure for transferring the administra- tion of these permits. If a State lacks authority to directly admin- ister permits issued by the Federal government, a procedure may be established to transfer responsibility for these permits.

NOTE: For example, EPA and the State and the permittee could agree that the State would issue a permit(s) identical to the out- standing Federal permit which would be simultaneously termi- nated.

Petitioners' argument that the Region abused its discretion in issuing the HSWA portion of the RCRA permit is also rejected. Peti- tioners contend that, because the State portion of the permit includes corrective action requirements under State law, the Region should not have issued the federal HSWA portion of the permit, and that issuance of the federal portion will lead to unnecessary duplication. We disagree. Although some duplication between the federal and State portions of a permit may result where, as here, a State chooses to impose corrective action requirements prior to receiving HSWA authorization, the Region does not abuse its discretion by issuing the HSWA portion of the permit. On the contrary, the statutory language indicates that a RCRA permit must contain corrective action requirements,⁶ and that the Agency must administer the HSWA pro- gram unless the State program is finally authorized.⁷ Thus, the Re- gion cannot waive its statutory obligation to administer the HSWA program prior to State authorization. Because issuance of the HSWA permit was consistent with RCRA and its implementing regulations and because Petitioners have failed to establish any abuse of discre- tion, review is denied.

So ordered.

⁶See RCRA § 3004(u), 42 U.S.C. § 6924(u). That section provides, in part:

a permit issued after November 8, 1984, by the Administrator or a State shall require corrective action for all releases of hazard- ous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subchapter * * *.

⁷See RCRA § 3006(g)(1), 42 U.S.C. § 6926(g)(1) (“The Administrator shall carry out [the HSWA] requirement[s] directly in each State unless the State program is finally authorized * * * with respect to such requirement[s].”).

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