U.S. Department of Energy, Pinellas Plant (Board decision, July 8, 1992)

Plain-English summary

The League of Women Voters of North Pinellas County, Inc. challenged the federal portion of a RCRA permit for the U.S. Department of Energy’s Pinellas Plant in Largo, Florida. The petitioner asked the EAB to deny authorization for thermal treatment of hazardous waste, regulate radioactive and hazardous air emissions, apply radioactive-waste standards, and re-examine low-level radionuclide protections. The Board denied review because the thermal-treatment process was governed by the state-issued portion of the permit and the other concerns involved authorities outside the federal HSWA permit at issue.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 6925 and 6926(b); 40 C.F.R. §§ 124.19 and 191.04
• Outcome: Review of the federal portion of the permit was denied.
• Key point: EAB review is limited to issues within the federal permit decision being challenged.

Full text (EPA EAB public release)

72 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF U.S. DEPARTMENT OF ENERGY,
PINELLAS PLANT

RCRA Appeal No. 91-3

ORDER DENYING REVIEW

Decided July 8, 1992

Syllabus

The League of Women Voters of North Pinellas County, Inc., petitioned for review of the federal portion of a permit issued by Region IV under Section 3005 of the Resource Conservation and Recovery Act to the U.S. Department of Energy (owner) and General Electric Company (operator) for the Pinellas Plant in Largo, Florida, which manufactures neutron generators and electronic and mechanical components for the weapons industry. Petitioner asks that authorization for thermal treatment of hazardous waste be denied, and raises concerns about the regulation of radioactive waste by the permit.

Held: The petition for review is denied because it fails to identify and factual or legal errors or any policy considerations or exercises of discretion that warrant review.

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

Per Curiam:

Petitioner, the League of Women Voters of North Pinellas Coun- ty, Inc., seeks review of the federal portion of a permit issued under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §6925, for the Pinellas Plant in Largo, Florida, which manufactures neutron generators and electronic and mechanical components for the weapons industry. Region IV issued the federal portion of the permit on February 9, 1990 to the United States Department of Energy as owner, and the General Electric Company as operator, of the Pinellas Plant.1 The federal

1Section 124.19(a) provides that a petition for review may be filed within thirty days after service of notice of the Regional Administrator’s permit decision. The Region failed to serve a copy of its permit decision on Petitioner when that decision was issued on February 9, 1990. In an effort to preserve Petitioner's appeal rights, the

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U.S. DEPARTMENT OF ENERGY, PINELLAS PLANT 73

portion of the permit imposes operating requirements for the manage- ment of hazardous wastes under the 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA.2 As requested by the Agency’s Judi- cial Officer,3 Region IV submitted a response to the petition for re- view and relevant portions of the administrative record.

Under the rules that govern this proceeding, an RCRA permit ordinarily will not be reviewed unless it is based on a clearly erro- neous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). The preamble to the Federal Register notice in which §124.19 was promulgated 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 re- view is warranted is on the petitioner.

Petitioner seeks review on four grounds. First, Petitioner asks that authorization for thermal treatment of hazardous waste be de- nied because of concerns about the safety of open burning.* Second, Petitioner requests regulation of all radioactive and hazardous air emissions at the Pinellas Plant. Third, Petitioner requests that the permit apply the standards of 40 CFR § 191.04 to the operations at Pinellas.5 Finally, Petitioner requests re-examination of low-level

Region served a copy of its permit decision upon Petitioner on January 9, 1991, almost a full year later. The Region’s action in this regard is problematic because the normal time for reviewing the permit has long since expired. In other cir- cumstances, the Region’s actions might well raise serious equitable concerns, particu- larly if attempted in a proceeding involving a permit for new construction under RCRA or the Clean Air Act’s Prevention of Significant Deterioration (PSD) Program. Because we deny review on the merits, however, we need not address whether the Region’s action in fact preserved any right to substantive review of the issues raised by the petition.

2The non-HSWA portion of the permit was issued by Florida, an authorized State under RCRA § 3006(b), 42 U.S.C. §6926(b).

3 At that time, the Agency’s Judicial Officers provided support to the Administrator in his review of permit appeals. On March 1, 1992, all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992).

4Thermal treatment of hazardous waste at the Pinellas Plant is currently regu- lated under the State-issued portion of the RCRA permit. On May 2, 1989, DOE submitted a permit application to EPA for the thermal treatment process at the Pinellas Plant under Subpart X of 40 CFR Part 264. EPA has until November 8, 1992, to grant or deny this request. 42 U.S.C. §6925(c)(2)(B).

5This regulation is found in 40 CFR Part 191, which is entitled “Environmental Radiation Protection Standards for Management and Disposal of Spent Nuclear Fuel, High-Level and Transuranic Radioactive Wastes.”

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74 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

radionuclide regulations to determine whether adequate protection is afforded if DOE applies the Nuclear Regulatory Commission policy of exempting low-level radioactive waste from regulation.

In much more detail than provided here, the Region responds that Petitioner has not met its burden of demonstrating that review is warranted under § 124.19 because the issues raised by Petitioner are beyond the scope of the federally issued portion of this permit. Concerning Petitioner's request to deny authorization for thermal treatment of hazardous waste, the Region correctly notes that the thermal treatment process for this facility is presently governed by the state, not federal, portion of this permit. The Region also correctly explains that all other concerns raised by Petitioner pertain to mat- ters regulated by provisions other than HSWA, the authority used by the Region in issuing this permit. For the reasons set forth in Region IV’s “Response to the League of Women Voters Request for Permit Review,” which reasons are hereby adopted and incorporated by reference as if fully set forth herein, Petitioners have failed to show that the Region’s permit determination in this case is clearly erroneous or otherwise warrants review under 40 CFR § 124.19(a). Accordingly, review is hereby denied.

So ordered.

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