Cargill, Inc.

Plain-English summary

Reverend Charles Lenard Floyd petitioned for review of EPA Region IX's decision to issue Cargill, Inc. a RCRA permit for a hazardous-waste incinerator in Lynwood, California. He argued that the Region failed to follow California public-meeting procedures and therefore did not give Lynwood residents an adequate opportunity to participate in the permit decision. The Environmental Appeals Board denied review because the issue was not raised during the public comment period or at the public hearing, even though the alleged defect was reasonably ascertainable then. The Board did not disturb the permit and did not state a penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.13 and 124.19; 42 U.S.C. § 6925
• Outcome: Review was denied, leaving the RCRA permit decision in place.
• Key point: A permit challenge based on a procedural defect must be raised during the public comment period or hearing when the defect is reasonably ascertainable.

Full text (EPA EAB public release)

CARGILL, INC. 31

IN THE MATTER OF CARGILL, INC.

RCRA Appeal No. 92-14

ORDER DENYING REVIEW

Decided May 18, 1992

Syllabus

A citizen has filed a petition for review challenging the decision of U.S. EPA
Region IX to issue a permit under Section 3005 of the Resource Conservation and
Recovery Act to Cargill, Inc. for its hazardous waste incinerator in Lynwood, California.
Petitioner argues that the Region did not comply with certain procedures of California
law and thus failed to give the citizens of Lynwood an adequate opportunity to partici-
pate in the decision-making process that led to the issuance of the final permit.

Held: Review is denied because the issue was not raised during the public com-
ment period or at the public hearing, even though it was reasonably ascertainable
at that time.

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

Per Curiam:

Before us is a petition for review filed by the Reverend Charles
Lenard Floyd challenging the decision of U.S. EPA Region IX to issue
a permit under Section 3005 of the Resource Conservation and Recov-
ery Act of 1976 (RCRA), as amended, 42 U.S.C. § 6925, to Cargill,
Inc. for its hazardous waste incinerator in Lynwood, California. The
incinerator is used to destroy liquid and gaseous wastes from Cargill's
synthetic resin manufacturing plant. The facility has been operating
under interim status. As requested by the Environmental Appeals
Board, Region IX has filed a response to the petition for review.

Under the rules that govern this proceeding, a 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 Section 124.19 was promul-

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32 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

gated states that “this power of review should be only sparingly
exercised,” and that “most permit conditions should be finally deter-
mined at the Regional level * * *.” Id. The burden of demonstrating
that review is warranted is on the petitioner. The petitioner in this
case has not carried that burden.

The gist of the petition is that Region IX did not give the citizens
of Lynwood an adequate opportunity to participate in the decision-
making process that led to the issuance of the final permit. Petitioner
charges that the Region's alleged failure to provide such an oppor-
tunity violated California Government Code § 54950, which requires
meetings of “the legislative body of a local agency” to be “open and
public.”

The Region responds that this issue has not been preserved for
review, because petitioner failed to raise it during the public comment
period or at the public hearing, even though it was reasonably ascer-
tainable at that time. See 40 CFR §§ 124.13 and 124.19(a). The Region
also notes that California Government Code § 54958 does not apply
to meetings conducted by the Region, and petitioner has not cited
any Federal permitting procedures that were violated by the Region.
Finally, the Region's response details the extensive notice procedures
carried out by the Region.

We conclude that the Region afforded the public every oppor-
tunity to participate provided for under Federal permitting proce-
dures. We agree with the Region that this issue has not been pre-
served for review, since any alleged defect in the public hearing
procedures was reasonably ascertainable at the time of the public
comment period. Accordingly, since this issue has not been preserved
for review, review is hereby denied.

So ordered.

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