ThermalKEM, Inc., Rock Hill, South Carolina

Plain-English summary

ThermalKEM operated a hazardous-waste treatment and storage facility in Rock Hill, South Carolina, under interim status. After EPA's toxicity-characteristic rule reclassified some wastes as hazardous, ThermalKEM sought to increase the incinerator's hazardous-waste mass feed rate in its Part A application. EPA Region IV denied the proposed amendment because ThermalKEM had not shown that the higher rate would protect human health and the environment. The Environmental Appeals Board dismissed the appeal because the denial concerned interim status and was not a final permit decision subject to review under Part 124.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.2, 124.15, 124.19, 265.147(c), 270.1(b), 270.10(e), 270.73, and 42 U.S.C. §§ 6905(e) and 6910(a).
• Outcome: The appeal was dismissed as outside the scope of review for a final permit decision.
• Key point: An agency decision affecting interim status operations is not necessarily a final permit decision appealable to the EAB.

Full text (EPA EAB public release)

532 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF THERMALKEM, INC., ROCK HILL,
SOUTH CAROLINA
RCRA Appeal No. 92-4
ORDER DISMISSING APPEAL
Decided March 10, 1993
Syllabus

ThermalKEM, Inc. seeks review of a decision by U.S. EPA Region IV denying
ThermalKEM’s proposed amendment to its Part A permit application. ThermalKEM
operates a waste treatment and storage facility in Rock Hill, South Carolina at which
it incinerates both hazardous and non-hazardous waste. The facility is currently operat-
ing under interim status. In September of 1990, the Agency's new organic toxicity
characteristic (TC) rule became effective. As a result of this rule, many of the wastes
incinerated at ThermalKEM’s facility that were formerly considered non-hazardous
were reclassified as hazardous. In order to continue burning these wastes at the
same rate as before the effective date of the TC rule, ThermalKEM sought to revise
its Part A permit application to, inter alia, increase the incinerator’s hazardous waste
mass feed rate. The Region denied the proposed amendment on the ground that
ThermalKEM had failed to demonstrate that operation of the incinerator at the in-
creased mass feed rate would adequately protect human health and the environment.
ThermalKEM has filed an appeal under 40 C.F.R. § 124.19.

Held: The Region's denial of the proposed change to ThermalKEM’s Part A appli-
cation did not constitute a final permit decision. The Region's determination is there-
fore not reviewable under 40 C.F.R. § 124.19(a), which by its terms restricts the
scope of review to specified actions affecting “final permit decision[s).” Accordingly,
the appeal is dismissed.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge McCallum:

By petition dated January 31, 1992, and submitted under 40
C.F.R. § 124.19, ThermalKEM, Inc. seeks review of a decision by
US. Environmental Protection Agency Region IV (the “Region”) deny-
ing ThermalKEM’s proposed amendment to its Part A permit applica-
tion. ThermalKEM had sought to amend its application to, inter alia,
increase the mass feed rate for its hazardous waste incinerator in
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THERMALKEM, INC., ROCK HILL, SOUTH CAROLINA 533
Rock Hill, South Carolina. For the following reasons, ThermalKEM’s
appeal is dismissed.
I. BACKGROUND
ThermalKEM owns and operates a hazardous waste treatment
and storage facility that is currently operating under interim status.
The facility incinerates both hazardous and non-hazardous wastes.
Upon promulgation of the Agency’s new toxicity characteristics (TC)
rule, many of the wastes incinerated at ThermalKEM’s facility that
were previously classified as non-hazardous were reclassified as haz-
ardous and thus became subject to regulation under Subtitle C of
RCRA. To continue incinerating these previously non-hazardous
wastes in the same quantities as before promulgation of the TC
rule, ThermalKEM sought to revise its Part A permit application
to show an increase in the facility’s hazardous waste mass feed rate
from 2.85 tons per hour to 5.35 tons per hour. The Region denied
the proposed increase on the ground that ThermalKEM had failed
to demonstrate that incineration of hazardous wastes at the increased
mass feed rate would adequately protect human health and the envi-
ronment.’ ThermalKEM’s petition for review followed.

10n November 17, 1980, ThermalKEM’s predecessor, Industrial Chemical Com-
pany, Inc., qualified for interim status under RCRA §3005(e) by submitting a notifica-
tion of hazardous waste management activity as required by RCRA §3010(a) and
filing a “Part A” application. See 40 C.F.R. §§270.1(b), 270.10(e). The date for submis-
sion of “Part B” of the RCRA permit application, containing the information necessary
for issuance of a permit, is set for each existing facility by the Regional Administrator
or in accordance with the dates specified in 40 C.F.R. § 270.73. See 40 C.F.R.
§§ 270.1(b); 270.10(e(4). According to ThermalKEM, the Part B permit has been issued
but is currently on appeal. Petition for Review at 6, 10-11. Thus, ThermalKEM contin-
ues to operate under interim status. See Petition for Review at 10; 40 C.F.R. § 270.73(a)
(stating that interim status terminates when “[flinal administrative disposition of
a permit application is made.”). The Region does not dispute that ThermalKEM is
operating under interim status.

255 Fed. Reg. 11,798 (March 29, 1990); 40 C.F.R. Part 261, Subpart C. The
rule, inter alia, establishes a new hazardous waste characteristic based on the
leachability of hazardous constituents under the toxicity characteristic leaching proce-
dure and adds 25 new organic constituents to the list of toxic constituents regulated
under RCRA. See 55 Fed. Reg. at 11,803; Appendix II to 40 C.F.R. Part 261.

3See Letter from James S. Kutzman, Associate Director, Office of RCRA and
Federal Facilities, U.S. EPA Region IV, to William J. Ziegler, Vice President of Health,
Safety, and Environmental Affairs, ThermalKEM, Inc. (Jan. 8, 1992) (Exh. A to Peti-
tion for Review). According to Mr. Kutzman, the proposed increase in the facility's
mass feed rate constitutes an increase in design capacity “[alnd until the South Caro-
lina Department of Health and Environmental Control (DHEC) is authorized for the
TC rule, EPA is responsible for any approval of a design capacity increase requested
under the TC regulations.” Id at 2.

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534 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Region IV has filed a Motion to Dismiss Appeal, dated March
18, 1992. The Region contends that, because the denial of the pro-
posed amendment to ThermalKEM’s Part A application did not con-
stitute a final permit decision under 40 C.F.R. § 124.15, the Region’s
determination is not subject to appeal under Section 124.19(a). We
agree.
II. ANALYSIS
40 C.F.R. § 124.19(a) provides, in part:
Within 30 days after a RCRA, UIC, or PSD final
permit decision * * * has been issued under § 124.15,
any person who filed comments on that draft permit
or participated in the public hearing may petition
the Environmental Appeals Board to review any con-
dition of the permit decision.
(Emphasis added.) Under section 124.15(a), “final permit decision
means a final decision to issue, deny, modify, revoke and reissue,
or terminate a permit.” The term “permit” is defined as:
[A]n authorization, license, or equivalent control doc-
ument issued by EPA or an “approved State” to im-
plement the requirements of this part * * . Permit
does not include interim status ($270.70) * * .
40 C.F.R. § 124.2 (emphasis added). Thus, decisions affecting a facili-
ty’s interim status operations are not considered permit decisions.
See In re Shell Oil Company Deer Park Manufacturing Complex,
RCRA Appeal No. 87-19, at 3-4 (Adm’r, Sept. 8, 1988) (holding that
interim status is not a permit and decisions regarding interim status
will not ordinarily be treated as permit decisions).*

In the present case, ThermalKEM is not appealing from a final
permit determination within the meaning of the above-cited regula-
tions. By its own account, ThermalKEM sought to revise its Part
A permit application “to achieve interim status for additional hazard-
ous waste mass feed and to remain in full compliance with the in-

The regulations provide certain exceptions to this rule. See, eg. 40 C.F.R.
§ 270.10(e)(5) (procedures of Part 124 apply where interim status is terminated for
failure to submit a Part B permit application in a timely manner); 40 C.F.R.
§ 265.147(c) (applying informal procedures of § 124.5 to variances from interim status
financial responsibility requirements). Under the facts of this case, however, nothing
in the regulations provides for an appeal under Part 124.

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THERMALKEM, INC., ROCK HILL, SOUTH CAROLINA 535
terim status standards set forth in Part 265, Subpart 0.” Petition
for Review at 2 (emphasis added). The denial of such a request
does not constitute a decision issuing, modifying, revoking and reissu-
ing, or terminating a permit within the meaning of the above-cited
regulations and therefore is not reviewable under 40 C.F.R.

§ 124.19(a).5 See Shell Oil, supra, at 3-4. Accordingly, ThermalKEM’s
petition for review is hereby dismissed.
So ordered.
5We also reject ThermalKEM’s assertion that the Region’s denial amounts to
a termination of interim status and should be treated as the functional equivalent
of a final permit decision. See Shell Oil, supra, at 3 (rejecting the petitioner’s argument
that denial of an interim status exemption is reviewable under 40 C.F.R. § 124.19
because it is “functionally similar” to a permit decision). The Region, in rejecting
the proposed modification, determined that ThermalKEM has yet to demonstrate that
a higher mass feed rate will be sufficiently protective of human health and the environ-
ment. Whatever the merits of this determination (which we do not reach in today’s
order), it does not prevent the facility from continuing to operate under interim status.
Whether ThermalKEM may have to curtail its operations to comply with the TC
rule, and if so, to what extent, is not material to this determination.
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