Waste Technologies Industries (Board decision, January 23, 1995)

Plain-English summary

Waste Technologies Industries operated a hazardous-waste incinerator in East Liverpool, Ohio. EPA Region V added Von Roll (Ohio), Inc. as an additional permitted operator after learning that the company had been performing operational and maintenance work without prior EPA approval. The City of Pittsburgh argued that EPA had to revoke the permit and require a new permit application instead of using a permit modification. The Environmental Appeals Board held that the regulations allowed an agency-initiated modification for cause, rejected Pittsburgh's reading of the transfer and revocation rules, and denied review.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 6925 and 6928; 40 C.F.R. §§ 124.19, 270.1, 270.30, 270.40, 270.41, and 270.42.
• Outcome: Review was denied, and EPA's permit modification adding the additional operator was upheld.
• Key point: RCRA does not require EPA to revoke and reissue a permit for every unapproved operational transfer; EPA may use an agency-initiated modification when the regulations permit it.

Full text (EPA EAB public release)

646 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN RE WASTE TECHNOLOGIES INDUSTRIES
RCRA Appeal No. 93-11
ORDER DENYING REVIEW
Decided January 23, 1995
Syllabus

The City of Pittsburgh, Pennsylvania, challenges a decision by U.S. EPA Region V modifying the RCRA permit for the Waste Technologies Industries hazardous waste incinera tor in East Liverpool, Ohio. The Region's decision resulted in the addition of Von Roll (Ohio), Inc. CVRO") as an additional permittee authorized to operate the facility. The Re sion framed its permit action as a decision authorized under EPA regulations governing “Class 1" modifications of RCRA permits, and the Region urges us Co uphold the decision on that basis. Pitsburgh, however, submitted comments challenging the Region's characteriza tion ofits proposed action as a Class 1 permit modification, andl it continues to challenge that characterization in its appeal. Thus, although Pitsburgh’s comments included no sub Sstantive objection to the addition of VRO as a facility operator, Pitsborgh argued in its ‘comimenis—and continues to maintain on appeal—that the Region erred by effectuating that ‘change through a Class 1 permit modification procedure.

More particularly, Pitsburgh contends that, because the facility owner allowed VRO to function as an operator before the permit was modified, and did not obtain prior BPA approval to do 3, the Region’s use of any kind of permit modification procedure to add VRO to the permit was unlawful. Pitsburgh contends that Region V was required, instead, to utilize the procedure of “revocation and reissuance” for purposes of adding VRO to the permit

Held The Hoard has jurisdiction to consider Pitisburgh’s appeal despite the absence of any regulatory provision for administrative review of "Class 1" permit modification dec sions. Although the appeal is cast in the form ofa challenge to Class 1 permit modification, the substance of Pitsburgh’s argument is that the Region erred by refusing to employ Challenges the Region’s denial ofa request for revocation and reissuance of a RCRA permit, and such a denial is appealable to the Environmental Appeals Board pursuant 10 40 CER sas.

Cn the merits, Pittsburgh's challenge to the Region's permit action is rejected because the challenge is based on an erroneous reading of 40 CER. § 270.404a), governing RCRA permit “transfers.” Pittsburgh reads the regulation 0 authorize the addition of a new permit- tee to an existing RCRA permit only by means of (1) a preapproved, permittee-requested modification of the permit, oF (2) revocation and reissuance of the permit; in the absence of preapproval, Pittsburgh asserts, revocation and reissuance is the only permissible option. The Board concludes, however, that 40 CFR. § 270.40(a) also contemplates a thitd alterna tive method of adding 4 new permittee to an existing RCRA permit: through a non VOLUMES

WASTE TECHNOLOGIES INDUSTRIES 647
preapproved, EPA-initited permit modification for “cause,” as described in 40 CER § 270.a100)02)

‘The Board recognizes that Region V has not cited section 270.41(b) as authority for is decision. The Board concludes, however, that the Region in fact employed_in slightly, but fhot materially, abbreviated form the procedures for Agency-initiated RCRA permit modifi Cations when icadded VRO (o this permit, Of equal importance, Ptsburgh apparently agrees that the Region's action fits comfortably within the procedural framessork established in 40 CER. § 270-4105) for Agency-initiated modifications (insisting, meanwhile, that no modifi- ‘ation procedure was permissible in the circumstances of this case). Therefore, with Pits burgh having interposed no substantive objection to the addition of VRO as an operator and no procedural objection alleging noncompliance with 40 C.ER. § 270.41¢b), the Board up- hols the Region’s action as a permissible exercise of its authority under section 270.41¢b). Pitsburgh's contention that the Region was required to utilize revocation and reissuance procedures, instead of modification procedures, is rejected as grounded in an erroneous reading of rections 270.40(a) and 270.41¢b).

Finally, the Board rejects Ptsburgh’s contention that RCRA § 3005(@) should be read to require permit revocation in every instance of RCRA “noncompliance” by a permittee, thereby nullifying the broad discretion granted to the EPA Adiministracor in RCRA § 3008 and provided in the Agency's RCRA permitting regulations at 40 C.ER. part 270.

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

Opinion of the Board by Judge Firestone, in which Judge
Reich joined. Judge McCallum filed a separate opinion con- curring in the judgment, post p. 27:

In this appeal, the City of Pittsburgh, Pennsylvania, challenges an August 24, 1993 permit modification decision by U.S. EPA Region V. The Region approved a “Class 1” permit modification naming Von Roll (Ohio), Inc. VRO") as an additional permittee authorized to operate the Waste Technologies Industries hazardous waste incinerator in East

Liverpool, Ohio, under RCRA Permit No. OHD 980 613 541. Pittsburgh contends that because VRO began to function as an operator of the facility before the permit was modified, the modification is unlawful and the permit must, as a matter of law, be revoked: “[Tlhe modifica- tion,” Pittsburgh states, “violates the RCRA requirement that a permit be revoked and reissued for such an after-the-fact [i.e., non- preapproved) transfer.” Petition for Review, at 1. We conclude that there is no such RCRA requirement, and we therefore deny Pittsburgh's petition for review I. BACKGROUND A

‘The permit involved in this appeal became effective in January

1985, for an initial period of ten years. Although the issuance of the VOLUMES

648 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

permit was never challenged in court, Pittsburgh and other facility opponents have, in the years following the issuance of the permit, pressed a series of legal challenges seeking to prevent or to halt the facility's operation on a variety of grounds.

‘Two of those challenges have previously come before the Envi- ronmental Appeals Board. See In re Waste Technologies Industries, RCRA Appeal Nos. 92-7, 10, 11, 12, 13, 15, and 16 (EAB, July 24, 1992) (permit modification upheld in part and remanded in part); In re Waste Technologies Industries, RCRA Appeal Nos. 93-7 & 93-9 (EAB, June 21, 1993) (appeals dismissed for lack of jurisdiction). Two other challenges have been brought in the form of RCRA citizen suits, in two different jurisdictions. See Palumbo v. Waste Technologies Industries, 989 F.2d 156 (4th Cir. 1993) (action dismissed for lack of subject matter jurisdic- tion); Greenpeace, Inc. v. Waste Technologies Industries, 9 F.3d 1174 (6th Cir. 1993) (action dismissed for lack of subject matter jurisdiction). Another challenge to the facility’s operation—brought by Pittsburgh and several other petitioners and involving, among other issues, this Board's dismissal of RCRA Appeal Nos. 93-7 and 93-9—was recently dismissed by the U.S. Court of Appeals for the District of Columbia Circuit for lack of jurisdiction. See Greenpeace, Inc. v. EPA, Nos. 93- 1458, 93-1682, and 93-1683 (D.C. Cir. Jan. 13, 1995),

Of immediate relevance to the present proceeding is the following series of events. In September 1990, Waste Technologies Industries CWTP)—the partnership that owns the East Liverpool incinerator— contractually engaged one of its corporate general partners, VRO, to perform a variety of operational and maintenance activities at the fa- cility. The execution of that contract was neither reported to nor ap- proved by the EPA. After learning of the existence of the contract and examining related documents and information obtained pursuant to his RCRA investigative authority, the Regional Administrator for EPA Region V concluded in September 1992 that the contractual arrange- ment rendered VRO an additional statutory “operator” of the facility, along with the partnership itself, for purposes of the permit require- ment set forth in RCRA section 3005(a), 42 U.S.C. § 6925(a)

RCRA section 3005(a) required EPA to promulgate regulations “re- quiring each person owning or operating la hazardous waste treat- ment, storage or disposal] facility ** * to have a permit.” In accordance

"in addition, Region V has brought to ou attention a September 9, 1994 repor by the United states General Accounting Ofice — tiled Hazardous Waste: sues Pertaining tan Incineratorin Fast Liverpool, Obio — in which EPA's permitting decisions regarding this felt are examined in detail. The GAO repo doesnot, however, constitute par ofthe administrative record forthe permit ‘modification under review, and we therefore place no reliance on ts findings VOLUME 5

WASTE TECHNOLOGIES INDUSTRIES 649
with that section, EPA's RCRA implementing regulations provide, at 40 CER. § 270.1(0), that “folwners and operators of hazardous waste management units must have permits during the active life (including the closure period) of the unit.” Although the issue has never been adjudicated, it is assumed for present purposes that, between Septem- ber 1990 and August 1993, VRO functioned as an “operator” of a RCRA facility but did not have a RCRA permit B.

EPA regulations provide a mechanism for enforcing the RCRA § 3005(a) permit requirement not only against a facility owner or opera- tor who fails to obtain a permit, but also against a RCRA permit holder who allows a non-permitted entity to function as a “new owner or operator” of a RCRA facility without prior EPA approval. The regula- tions address the latter situation as a permit “transfer,” as to which 40 C.BR. § 270.40(a) provides:

A permit may be transferred by the permittee to a new

owner or operator only if the permit has been modified

or revoked and reissued (under § 270.40(b) or §

270.41(b)(2)) to identify the new permittee and incor-

porate such other requirements as may be necessary

under the appropriate Act.
Importantly, 40 C.F. § 270.30(DG) requires all RCRA permits to in- clude, among their reporting requirements, a condition that effectively prohibits transfer of the permit without prior approval of the permit issuing authority:

The following conditions apply to all RCRA permits,

and shall be incorporated * * * either expressly or by

reference.

(D Reporting requirements,* * * * (3) Transfers. This

permit is not transferable to any person except after

notice to the Director. The Director may require modi-

fication or revocation and reissuance of the permit to

change the name of the permittee and incorporate such

other requirements as may be necessary under RCRA.

(See § 270.40)
Although here, too, the issues have never been adjudicated, it is as- sumed for present purposes that by assigning operational responsibili-

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650 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ties to VRO in September 1990, the WTI partnership effected a permit “transfer” without prior EPA approval, in violation of 40 CER. § 270.40(a) and the reporting requirement incorporated into its permit from 40 CER. § 270.3000),

C

Having reached the conclusions described above regarding the effect of the September 1990 contract between WTI and VRO, Re- gion V responded in two ways. First, the Region commenced an administrative enforcement action seeking a $64,900 civil penalty against the WTI partnership for its unapproved assignment of “sub- stantial independent operational discretion and control to VRO.” Response to Petition for Review, Exh. B, at 11.?Second, the Region directed WTI to submit a request for a permit modification—which the Regional Administrator characterized as a “Class 1” modifica- tion’—to add VRO’s name to the permit as an additional permittee. Petition for Review, Exh. B, at 1.‘ After issuing public notice of the proposed modification, accepting comments from interested mem- bers of the public for a period of thirty days, and preparing a response to those comments, on August 24, 1993, the Region ap- proved a permit modification authorizing VRO to function as an additional permitted “operator” of the facility.

D.

Pittsburgh appeals from the Region's approval of the permit modi. fication proposal, based on comments that Pittsburgh submitted dur- ing the public comment period applicable to that proposal.” In its

“The record before us doesnot indicate the outcome, if any, ofthe administrative civil penalty

“The meaning and significance ofthe “Class 1° designation are discussed at length later in this pinion

«seriely speaking, it appears that such a modification was intlly requested by WT in June 1992, shonly after Region V leamed ofthe existence ofthe WTT-VRO contract and reached ts nit “tentative” conclusion that VRO had been functioning as an operator. The June 1992 modification request document was apparently unsigned, for reasons that are not clear from the record. After farther investigation, the Region finalized its determination regarding VRO's status as an operator in ‘September 1992, and directed WTI to submit a signed version of the modification request. It ap- pears tha the signed request was then submitted to Region V during November 1992. This pati Tar aspect ofthe modification chronology has no bearing on the questions before us on appeal: all that matters for purposes ofthe appa i thatthe (1992) modification request post-dates the (1990) WTI-VRO contract.

“The City of Pitsbungh actually submitted two sets of comments on the proposed moxliica- tion: one set dated October 28, 1992 (within the comment period established by Region V), and a second set dated fly 7, 19 VOLUMES

WASTE TECHNOLOGIES INDUSTRIES 651
comments, Pittsburgh raised no substantive objection concerning VRO’s qualification to hold a RCRA permit, Rather, Pittsburgh objected that, notwithstanding the Region's characterization of the proposed change as a “Class 1" modification, EPA's “Class 1” modification procedures did not, in fact, authorize the addition of VRO as a permitted operator because prior EPA approval for the change had not been obtained. In particular, Pittsburgh stated:

(The change in operator proposed here is not a Class
1 modification, and there is no authority for US EPA to
handle the change under the procedures established
for such a modification. To the contrary, WTI and Von
Roll (Ohio), Inc. have violated the requirements both.
of 40 CER 270.40 and 42 USC 6925, such that revocation.
of the permit and re-application by the current owners
and operators is the only legally appropriate scenario
for the US EPA to pursue.
Petition for Review, Exh. C, at 2.°Pittsburgh repeats that argument in its appeal before the Board, arguing that the Region was legally re- quired, instead of modifying the permit by naming VRO as an addi- tional permitted operator, to revoke the permit and close the facility while WTI and VRO filed a new permit application and proceeded anew through the entire permit issuance process. Pittsburgh's appeal requests, accordingly, that we invalidate the permit modification and order Region V to revoke the entire WTI permit. To properly assess Pittsburgh's argument, it is necessary to examine in some detail the regulatory provisions governing RCRA permit modifications, and those provisions immediately present us with a threshold question concern- ing our jurisdiction to decide this appeal Il. JURISDICTION ‘The jurisdictional issue, much like the underlying dispute, arises from the Region’s characterization of the challenged permit action as a “Class 1” modification, EPA regulations at 40 CER. §§ 270.41 and 270.42 divide the universe of RCRA permit modifications into two broad categories: (1) permittee-requested modifications, and (2) all “ta its second set of comments, date July 7, 193, Pitsburg simply reiterated the same objec: tion: “The changes in ownership and operational congo tissue hee, however, occured before ny requests were made to approve them. Accordingly, they cannot be processed as Class 1 mod fications, and there is no authority for the US EPA to handle the changes under the procedures tetablished for sch moxilications. The changes can only be processed, a section 270 40a) inl Cates, under the procedures for revocation and eisuance under 40 CFR 270.41(b)G2).” ettion for Review, Exh. D, at 2. VOLUMES

652 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

other modifications.” According to section 270.41, all Agency-initiated modifications are appealable to the Environmental Appeals Board." Under section 270.42, however, permittee-requested modifications are further divided into three separate “classes” according to the substance of the requested change. Modifications classified under section 270.42 as “Class 2” or “Class 3” require prior notice to the public, an oppor- tunity for public comment, and a public meeting, whereas “Class 1” modifications involve less-significant changes and may therefore be implemented without prior public notice. In addition, modifications classified under section 270.42 as “Class 2” or “Class 3” are appealable to the Environmental Appeals Board, but “Class 1” modifications are not. Compare 40 C.F.R. § 270.42(f)(2) (“The Director's decision to grant or deny a Class 2 or 3 permit modification request under this section may be appealed under the permit appeal procedures of 40 CFR 124.19.") with id. § 270.42(a)(1)ii) (authorizing the “Director” [i.e., the EPA Regional Administrator] to consider objections to Class 1 modifications, but making no provision for further administrative re- view).

On its face, Pittsburgh’s petition claims to challenge a decision by Region V approving a (non-appealable) “Class 1” permittee-requested modification. We therefore directed Pittsburgh and the Region, in an order dated September 24, 1993, to submit briefs addressing the ap- pealability of the Region’s decision and our jurisdiction to consider the appeal. In a subsequent order dated June 10, 1994, we concluded that, because the jurisdictional question appeared substantially inextricable from the merits of the dispute, resolution of the jurisdictional issue would be deferred pending full briefing by the parties of the merits of the appeal. Having examined the relevant regulations and the submis- sions of the parties addressing both the jurisdictional question and the merits of the underlying dispute, we conclude for the following rea sons that the appeal is properly before us.

It is undisputed that EPA’s regulations provide for no administra~ tive appeal to challenge the approval of a Class 1 permit modification. Region V, therefore, having characterized its action as a Class 1 modi- fication, argues that we lack jurisdiction to consider this appeal. Pitts-

For lack of a more precise tem, inthe following discussion we refer to the second of these categories as “Agency-initated” modifications; by that we mean, however, any modification other than one requested by a permitee pursuant tothe procedures described in 0 CER. § 270.82

• Specialy, section 270.41 states that in order for EPA to effectuate a permit modification
  other than one requested by the permitee, “a draft permit must be prepared and other procedures in par 124** followed." Par 124, tum, tates that aRCRA *** inal permit decision” appeal- able tothe Environmental Appeals Board (§ 124.1%a)), and tha a “final permit decision” includes a final decision to modify a RCRA permit (§ 124.150),

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burgh, on the other hand, asserts that the appeal is properly before us because: ‘The issue here is not primarily whether the Region should, based upon the merits of the proposed change, have approved the modification at issue. The issue is whether the action should have been classified as a Class 1 modification.

Petitioner's Brief on the Question of Jurisdiction, at 4?

Pittsburgh's emphasis on the classification issue does not over- come its jurisdictional problem, because classification decisions are no more appealable to the Board than are the merits of Class 1 modifica- tion decisions. See Permit Modifications for Hazardous Waste Man- agement Facilities (Preamble), 53 Fed. Reg, 37,912, 37,921 (1988) (“For Class 1 modifications, temporary authorizations, and classification determinations, the appeal procedures of Part 124 do not apply *** .”) (emphasis added), Thus, if Pittsburgh were merely asserting that the addition of VRO as a permittee should have proceeded through Class 2 or Class 3 modification procedures—with greater opportunity for public participation than the Class 1 procedures ordinarily entail!” — we would not have jurisdiction to address that contention.

~Pinsburgh also argues that the Region's decision is appealable because the Region pressed
{WT to submit its modification request and then employed procedures tantamount 10 those asoci- ated with Agency-initated permit modifications under 10 CER. § 270.41, which are uniformly ap pealable tothe Board, This argument is discussed in detail nr

We emphasize “ordinarily” because a Regional office can always offer more procedural safe- wards than itis legally obligated to provide, Het, for instance, the Region was free to wlze (as did) procedures more detailed than the typical Cass 1 procedures when addressing WIT's moii- cation request, despite the Region's oun conclusion that only Class 1 procedures were legally re- Giuired. Theres nothing unuswal or noteworthy about providing such extra “process” for a permit ‘modification, as a general matter, the classification of a proposed change under 40 CER § 270.42 fixes only the minimum procedures that are required for approval or disapproval ofthe change.

As discussed below, however, we do find it noteworthy that in this case the Region expressly refused to make a determination onthe proposed change until aftr receiving and evaluating com: ‘ments from the publi, See Petition for Review, Exh, B (September 30, 1992 letter from the Regional Administrtor to WTD, a 2 (tating that “alter the close ofthe public comment period and prepara- tion of formal Response to Comments, U.S. EPA will make final determination on the addition of ‘VRO tothe permit as an operator’). The central and distinctive feature ofthe Class 1 process that any necessary regulatory approval curs without prior notice tothe public. See 40 CER. § 27042) (CFor the Class I changes that requite prior Diector approval, the notification fof persons on the facility mailing list and of appropriate State and local governments] mast be mace within 90 calen- dar ays alter the Director approves the request". Only afer a Class 1 change wins initial regula tory approval (where required) does the public have an opportunity to urge that the change be reviewed and rejected

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654 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Pittsburgh's contention, however, is somewhat different. Despite what its own jurisdictional brief implies, Pittsburgh does not, in fact, offer any argument to the effect that Region V made a prejudicially erroneous choice between alternative “classes” of permit modification procedures. Pittsburgh does not, for example, argue that the Region committed reversible error by providing only thirty days for public comment rather than sixty days (as would be required for a Class 2 or Class 3 modification), or by failing to hold a public meeting. Rather, Pittsburgh’s argument, as we understand it, is that: (1) the RCRA regu- lations generally allow a choice between a “Class 1” permit modifica- tion, on the one hand, and a procedure called “revocation and reissuance,” on the other, as a means of addressing the proposed addition of a new owner or operator to an existing RCRA permit; but (2) in this case, modification was not a permissible option, because the permittee failed to obtain prior EPA approval for the addition of the new operator; therefore (3) the Region committed reversible error when it employed a modification procedure instead of a revocation and reissuance procedure.

As we read it, therefore, Pittsburgh's appeal does not challenge the merits of the Region’s permit modification decision. Nor does it challenge the Region’s choice of the Class 1 modification procedure over some other type of modification procedure. Instead, Pittsburgh challenges the Region's decision not to employ the procedure of revo- cation and reissuance."" That challenge is not inconsequential because, according to 40 C.ER. § 270.41, revocation and reissuance proceedings are considerably broader in scope than modification proceedings:

When a permit is modified, only the conditions subject
to modification are reopened. If a permit is revoked
and reissued, the entire permit is reopened and subject
to revision and the permit is reissued for a new term,
(See 40 CFR 124.5(€)(2).)
Section 124.5(©(2) offers somewhat greater detail:

In a permit modification under this section, only those
conditions to be modified shall be reopened when a
new draft permit is prepared. All other aspects of the
existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened

• Soe Petition for Review, at 27 arguing thatthe Region has “ignored! its authority under 40
  CER § 124 5to revoke and reissue a permit or cause, citer on its own iniistive or atthe request of any interested person).

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WASTE TECHNOLOGIES INDUSTRIES 655
just as if the permit had expired and was being reis-
sued. During any revocation and reissuance proceed-
ing the permittee shall comply with all conditions of
the existing permit until a new final permit is reissued. ‘Thus, if the addition of VRO to this permit can be accomplished only through revocation and reissuance, the entire permit—including pro- visions wholly unrelated to the suitability of VRO as a facility opera- tor—will be reopened and will potentially be subject to a new round of challenges at the administrative level."*

‘The contention that Region V erred by electing not to revoke and reissue this permit is one that we have jurisdiction to review. Although a decision to classify a proposed modification as a Class 1 change is not appealable, and a decision to approve such a modification is not appealable, the denial of a request for revocation and reissuance is, under 40 CER. § 124.5(b), “informally” appealable to this Board.” ‘Accordingly, we conclude that we have jurisdiction to consider whether Region V was required to commence proceedings to revoke and reis- sue this permit, based on the permittee’s unapproved transfer of op- erational responsibilities to a non-permitted affiliate.

Ml. THE MERITS

All of Pittsburgh’s arguments on the merits relate to a single pro- cedural claim, namely, that the Region was legally required to utilize revocation and reissuance procedures, instead of modification proce- dures, to accomplish the addition of VRO to this permit. Importantly, Pittsburgh's comments to the Region identified no substantive objec-

“Use of the evocation and reissuance procedure would not, however, require the permitted facility to shut down as Pitsburgh appears to assume. As the quoted portion of section 1245 makes clear, during revocation and ressuance proceedings the conditions ofthe existing permit continue in effec.

® Section 12455 provides thatthe denial of a reques for revocation and reissuance "may be informally appeated tothe Environmental Appeals Board by a letter brely sting forth the relevant faa

‘The appeal shall be considered denied ifthe Eavironmental

Appeals Board takes no ation onthe letter within 60 days after

receiving it. This informal appeals, under 5 US.C. 704, pee

requisite 1 seeking judicial review of EPA action in denying a

request for *** revocation and ressuance ***
“The Board has never ad occasion to consider what typeof “action” on sch an appeals needed 0 keep the appeal alive beyond the sixtieth day. We have no dificult concluding, however, hat our September 24, 1993 order lor supplemental briefing on the question of our jurisdiction was sufi- dent for that purpose in the ctcumstances of his case

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656 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
tion to the addition of VRO; they focused, instead, solely upon Pittsburgh's claimed procedural right, under the RCRA permitting scheme, to demand the institution of permit revocation and teissuance proceedings. That right, according to Pittsburgh, emanates both from the RCRA regulations and from the statute itself. Pittsburgh's argu- ments touch on a number of interrelated regulatory and statutory pro- visions that the Board feels compelled, in the interest of clarity, to address at some length. We embark first on an examination of Pittsburgh’s arguments concerning the RCRA regulations, and then conclude by analyzing Pittsburgh’s argument based on the statutory text A. The Regulations

In support of its contention that revocation and reissuance is le- gally required, Pittsburgh offers two arguments based on the text of the RCRA implementing regulations. The first, essentially, is that WTI's modification request was submitted too late, i.e., after VRO had al- ready assumed operational responsibilities under the September 1990 contract. The second is that, even if the lateness of the modification request were excusable, the request itself was a nullity because the party making the request is not the party to whom this permit was originally issued. The latter argument relies on an underlying conten- tion by Pittsburgh that, as a matter of Ohio partnership law, the WTI partnership as presently constituted is a different legal entity than the WTI partnership originally named on the RCRA permit; if so, Pitts- burgh reasons, then the original permittee no longer exists and there is no one who is eligible to request a modification of the permit." Both of Pittsburgh's arguments assume that (1) an existing RCRA permit cannot be modified to add the name of a new operator in the absence of a prior modification request by the permittee, because (2) EPA itself

“in its argument based on Ohio partnership law, Pitsburg alleges that tree of the four original WTI partners have been replaced by other corporate enttes and thatthe original partner: Ship has consequently dissolved by operation of law. According tothe record before us, these allegations have been closely examined by Region Vand by EPA's Office of General Counsel, who hhave concluded tht the allegations implicate only “technical ssues of state business association Jw"; that the identity of the permitee for RCRA purposes (1, the “person owning” the facility Under RCRA § 3005) has not changed; and thatthe requirements of the permit are Fly enforceable agains all curent owners and operators of the facility. Response t Petition for Review, Exh. B, at 10, Moreover, in order to eliminate any public concem over issues of enforceability, the Region is currently processing & separate permit modification that would add a company called Von Roll “Ameria, Inc. — the ultimate parent ofeach ofthe WT partners — tothe permit as an additional permittee. According to that modification proposal, WTI has indicated that iil ransfer exclusive ‘ownership and operational contol ofthe facility to Von Roll America, Inc. once that company has been named as a permittee, when that transer occurs, WTI and VRO ate expected to be deleted from the peat enttely, See Response to Petition for Review, Eh, Dy at 1 VOLUMES

WASTE TECHNOLOGIES INDUSTRIES 657
is powerless to implement such a modification on its own initiative. We conclude that those two premises are erroneous, and we therefore reject both of Pittsburgh’s arguments based on the text of the RCRA regulations.

Pittsburgh's argument for revocation and reissuance based on the alleged untimeliness of WTI's modification request is succinctly set forth in Pittsburgh's comments to Region V. We repeat the argument here in full, quoting Pittsburgh's October 28, 1992 comment letter to the Region’s Waste Management Division:

Your October 1, 1992 notice indicates that the addition
of Von Roll (Ohio), Inc. to the RCRA permit as an op-
erator will be accomplished as a Class 1 modification.
Appendix I to section 270.42 of the RCRA regulations
(40 CER 270.42, Appendix 1) lists “changes in owner-
ship or operationlal] control of a facility” as a Class I modification “provided the procedures of section 270.40(b) are followed.” The procedures in section 270.40(b) require the submission of a revised permit application ‘no later than 90 days prior to the sched- uled change” and the written approval of the Director before the change takes place. It also requires the sub- mission of a written agreement containing a specific date for transfer of permit responsibility.

The permit change proposed here, however, is being
processed after the fact. The September 21, 1990 agree-
ment between Von Roll (Ohio), Inc. and WTI indicates
that the change in operators occurred at that time. Ac-
cordingly, the change in operator proposed here is not
a Class 1 modification, and there is no authority for US
EPA to handle the change under the procedures estab-
lished for such a modification. To the contrary, WTT
and Von Roll (Ohio), Inc. have violated the require-
ments both of 40 CFR 270.40 and 42 USC 6925, such
that revocation of the permit and re-application by the
current owners and operators is the only legally appro-
priate scenario for the US EPA to pursue.

Petition for Review, Exh. C, at 2.

Although Region V agrees that prior EPA approval for the addition of a new operator is ordinarily required under Class 1 procedures, the Region insists that the prior approval requirement can be waived. In

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particular, Region V asserts that prior approval is essentially a proce- dural device to facilitate the orderly administration of the RCRA permit program, that it can be granted by EPA without notice to the public, and that it can therefore be waived by the Agency in appropriate circumstances. Region V further argues that this case presented a com- pelling occasion for waiver of the prior approval requirement because, after comment was invited from the public, commenters raised no substantive objections concerning VRO’s qualification to act as a RCRA facility “operator”; the overriding environmental policy goal was, therefore, to add VRO to the existing permit so as to maximize VRO'S accountability for compliance with all applicable laws, regulations and permit conditions."*In substance, the Region contends that it is not sensible to reject a late modification request out of hand in the ab- sence of any substantive objection to the merits of the requested modification, at least where consideration of the late request is consis- tent with the objectives of the RCRA permit program.

We find it unnecessary to address the Region’s claim of discretion to accept a late or otherwise defective permit modification request. Although the parties hotly dispute the Region’s claimed authority to “waive” prior approval for a Class 1 permit modification that would ordinarily require such approval, we find that dispute to be largely beside the point. We do not find it necessary to consider whether the Region could bave utilized Class 1 modification procedures despite WT!'s failure to obtain prior Regional approval, because we conclude (for reasons detailed below) that the Region did not, in fact, utilize Class 1 modification procedures after it decided that VRO was func- tioning as an “operator” of the WTI facility. What we must consider, therefore, is whether the RCRA regulations authorized Region V to add VRO to this permit through the kind of modification procedures that

‘In ts petition for review, Pitsburgh belatedly asses that Region V does not have adequate information with which to assess the resources, lables, expertise, or “responsibilty” of VRO. Peiition for Review, at 12 Pitsburgh did aot, however, ase any such objection in its comments on this modification proposal, and thas therefore waived the objection tis well ete that where, as here, a proposed permit decision issued i draft form with an opportunity for public comment, any objection that isnot timely brought to the Region's tention during the comment period is ‘waived, and will not thereafter be considered on appeal. See 40 CER. § 124.13 commenters are Dbligated to “raise all reasonably ascertainable sues and submit all resonably available arguments Supporting their postion bythe close ofthe public comment period”) §124.1%a)(requiting, 08 appeal ofa Regional permit decision to this Board, “a demonstration than any issues being raised ‘were raised during the public comment period”

• See Response to Petition for Review, a 16 (although “de facto" owners and operators who
  have not obtained permits are fully liable for any RCRA noncompliance, “EPA requires all owners and operators to be identified on perms to ensure maximum enforceability and to ensure that all ‘owners and operators are familar with the nature and scope of operations at the facility’) VOLUMES

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the Region actually followed.” The regulations, we conclude, unmis- takably provide an affirmative answer.

In brief, we find that Pittsburgh’s entire argument in opposition to the modification procedures utilized by Region V is based on an erro. neous reading of 40 C.ER. § 270.40(a). The regulation states:

‘A permit may be transferred by the permittee to a new

‘owner or operator only if the permit has been modified or

revoked and reissued (under § 270.40(b) or § 270.410bX(2)) to

identify the new permittee and incorporate such other re-

quirements as may be necessary under the appropriate Act. Pittsburgh reads this regulation as establishing two, and only two, permissible methods of adding a new permittee to an existing RCRA permit: through a “Class 1” permittee-requested modification of the kind described in section 270.40(b), or through revocation and reissuance proceedings of the kind referred to in section 270.41(b)(2). In other words, Pittsburgh reads the regulation as if it stated that a new permittee may be added “only if the permit has been modified (under
§ 270.40(b)) or revoked and reissued (under § 270.41(b)(2)).""

We do not lightly set aside, oF look beyond, the Region's characterization ofthis modification 4s a Class 1 modification, but several considerations have persuaded us to do so in tis instance ‘Most obviously, a explained inthe text that follows, the procedures actually employed by Region Y simply do not match the Class 1 process described in section 270.42 ofthe regulations. In such citcumstances, we think it prudent to provide (much as the Region itself appears to have done by Augmenting the usual Class 1 process in significant respects) the same type of review that would have applied if the Region had labeled its action as a section 270.410bX2) modification, Moreover, while we do not necessarily disagree with the substance of our colleague's separate opinion on the

"waiver" issue, we cannot agree that that se is, i fact, squarely rsd by this appeal: Here Region Vid not simpy “waive” prior approval ofa change in operational contol. This case might well be different the Region, upon leaeing ofthe change in operational control, "waived" the prior vol tion, approved the change prospectively and instituted the Clas 1 procedures. But thats not what ‘occurred here. Rather, the Region withheld ts approval of the change pending completion of a formal notice-and.comment procedure, and its action in so doing is simply not recognizable as part ‘of a Class 1 modification process. Finally, from a practical standpoint, we believe that by addressing, Pittsburgh's appeal on the merits despite any lingering jurisdictional ambiguity, we can provide Pinsburgh withthe fll measure of administrative process 0 which it could conceivably be ented Doing so prejudices neither the Region since we find no fault wth ts actions) nor Pitsburgh since itis free to pursue the same judicial remedies available had we denied review for lack of jurisdic tion.

°tn its petition for review, Pitsburgh cites section 270.40(a) for the following proposition:
~The RCRA regulations provide for the entry of new owners and operators in two ways — (by modification pursuant to 40 CFR 270.40Xb) oF Gi by revocation and redssuance pursuant to 40 CFR 270.41(bX2).” Petition for Review, at 2. Aeconding to Pitsburg, “slection 270.402) ofthe RCRA regulations sates that transfers of permits are allowed only by modification under the prior ap proval procedures established in 40 CFR 270 40(b) or by revocation and reissuance under the pro edures of 4 CFR 270.4100)2)" I at 24

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Section 270.40(a) does not say what Pittsburgh claims that it says, however. Although section 270.40(a) mentions only two generic pro- cedures (modification or revocation and reissuance) for adding a new permittee, it does not say that revocation and reissuance is the only alternative to a “Class 1” permittee-requested modification of the kind referred to in section 270.40(b). To the contrary, section 270.40(a) expressly allows the addition of a new permittee through the proce- dures described in section 270.41(b)(2), and the latter provision ad dresses not only permit revocation and reissuance but also Agency- initiated permit modifications for “cause,”

In particular, section 270.41(b(2) makes clear that when EPA dis- covers the addition of a new owner or operator at a RCRA facility, EPA may respond to the “transfer” on its own initiative in either of two ways: by commencing an Agency-initiated permit modification, or by commencing revocation and reissuance proceedings. Specifically, sec- tion 270.41 states:

When the Director receives any information *** , he or
she may determine whether one or more of the causes
listed in paragraphs (a) and (b) of this section for modi- fication, or revocation and reissuance or both exist. If cause exists, the Director may modify or revoke and reissue the permit accordingly * * *

(b) Causes for modification or revocation and
reissuance. The following are causes to modify, or, al-

°"The regulation was even more explicit in this regard before it was amended, in October 1988, to conform 1 other regulatory changes whereby permitee-requested modifications were (0 be classified into three separate categories (Class 1,2, and 3) instead of two major” and “minor” ‘modifications, Before the new terminology for peemitee-requested changes was introduced, se tion 270.40 — then tiled “Transfers by Moxlfiation” — stated.

[A permit may be transferred by the permite ta new owner or

‘operator only if the permit has been moxiied or revoked and

reissued (under § 2704106X2)), oF a minor moxifcation made

(ander §270.42(d), to ident the new permitee and incorpo-

rate such other requirements as may be necessary under the

appropriate Ac.

What was then section 270.424), authorizing a “minor” permittee requested modification to

add a new operator to an existing permits now section 270.400), which authorizes a "Class 1" ppermitee-requested modification — essentially the same procedure — for that purpose. Then, as ‘ow, the availably ofthe permitte-requested modification procedure presupposed that EPA had approved the change in advance. Bu then, as now, the peste quested mosiication procedure ‘was not the only available akerative to the cumbersome “revocation and reissuance” procedure. A thie altemative, namely an Agency inated permit modification, was and remains entiely proper. VOLUME

WASTE TECHNOLOGIES INDUSTRIES 661

ternatively, revoke and reissue a permit: * * + *

(2) The Director has received notification (as required

in the permit, see § 270.30()(3)) of a proposed transfer

of the permit,
We think section 270.41(b)(2) aptly describes what transpired in this case.” The Regional Administrator received “information” of the kind described in the regulation when he learned of the existence of the WTI-VRO contract and conducted an investigation of the surrounding circumstances. Having concluded that “cause” existed for modification or revocation and reissuance of the permit, the Regional Administrator was thereupon authorized by the regulation to “modify or revoke and reissue the permit accordingly.”"

It does not, therefore, suffice for Pittsburgh to argue that this permit should be revoked because the RCRA regulations say that it must. The RCRA regulations say no such thing, The regulations allow the Regional Administrator either to modify the permit to reflect the addition of a new operator, or to revoke and reissue the permit for that purpose. We conclude that the Regional Administrator's modification of this permit was validly accomplished pursuant to the permit modi- fication provisions of 40 CFR. § 270.41(b)(2). Region V has not char- acterized its decision as a modification undertaken pursuant to section 270.41(b)X2), but no other characterization accurately reflects the de- gree to which key elements of the process were in fact orchestrated and controlled by the Region. In sharp contrast to the usual Class 1 modification procedures, here it was the Region, not the permittee, that provided public notice of the proposed change, and it was the Region, not the permittee, that solicited comments on the proposed change. Most importantly, in a major departure from the usual Class 1 procedures, the Region also made clear that it would not in any way lend its approval to the proposed change until after considering com- ments submitted by the public. Those actions, while strikingly at vari-

To be distinguished i situation such as that in Jn ve Waste Technologies Industrie, RCRA, Appeal No, 92-7 (EAB, July 24,1992), where the EPA Regional office's atempe to modify a RCRA Perit on its own intatve could not be sustained because, asthe Region itself acknowledged, tere did not exist any ofthe ‘causes for an Agency initiated modification that are enumerated in section 270.4,

2 Although section 270 41(6(2) refers to notification of a proposed transfer," Pitsburgh itself scknowledges —and we agree — thatthe “tansfer” mentioned in the regulation i most plausibly understood to refer to the transfer of the erm, through substitution or addition ofa new permit tee, not the underlying transfer of ownterbip o operational control. Se Psburgh’s Reply Bre, at 748 Guly 20, 1990; Pitsburgh’s Response to Notice of GAO Determination, at 5 (NOW. 16, 1984) ‘Thus, we find nothing in the language of section 270:1106X2) that would bur Une Regton's nation ‘of permit mexification proceedings (or revocation and reissuance proceedings) for cause” when the Region leans that a change in ownership or operational contol has already been completed,

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ance with the typical Class 1 procedures, are wholly consistent with an Agency-initiated modification for cause under section 270.41(b)(2). See 40 CFR, §§ 124.10 et seq Indeed, Pittsburgh itself recognizes that “{allthough the Region has characterized the change at issue here as a Class 1 modification made at the request of the permittee, the action could as easily be characterized as a permit modification made at the direction of the Agency pursuant to 40 CFR. 270.41.* * [TThe pro- cedures used by the Region to process the request were essentially those that would be used for an agency-directed modification. * * * * A Fact Sheet was prepared, and a thirty-day public comment period was established. A final decision was issued on August 24, 1993, and a formal Response to Comments document was prepared.” Petitioner's Brief on the Question of Jurisdiction, at 11, 14-15.

Moreover, we find that the Regional Administrator adequately jus- tified his decision to utilize the modification procedure instead of the revocation and reissuance procedure in his response to Pittsburgh's comments on the modification proposal, stating quite simply that “[dhe technical change in operational control that occurred here does not warrant reopening the entire WTI permit and processing an entirely new permit application, as would be the case in a revocation and reissuance proceeding. Nothing in U.S. EPA’s regulations requires the Agency to initiate time- and resource-intensive procedures that are unnecessary given the narrow scope of issues raised by the change in

We do not suggest, however, that whenever an EPA Regional ofice recommends the submis- sion ofa permit modification request (or exceeds the minimal procedural requirements prescribed bby regulation for processing the reques), the Board will et the resulting modification asf it were an Agency-initated modification. Our decision to teat the modification at iste here as an Agency” inated modification under section 270.410b)@2) results from the unique facts of this case, and today's opinion should not be consined as announcing generally applicable rule. Indeed, 2 Re sional fice recommendation toa permittee to submit permit modification request would never, by itself, suffice to transform the permitte-requested modification into an Ageney-initated modi cation reviewable by this Board

In this connection we note that, in one ofits own briefs on appeal, Region V discusses the ways in which it departed feom the usual procedures for an Agencyinitated modification: most. significantly, by accepting comments for 30 days rather than 45 days (see 0 CER. § 124.100), Region V Brief in Response to Jurisdictional Question, at 13 (Oct. 27, 1993). The iteen-day disrep- ancy isof no consequence. Asthe Region correctly points out, Pitsburg “has had fll opportunity to comment on all issues and facts relevant to the change in operational conto in this instance." Response to Petion for Review, at 18, Indeed, the recor indicates that Pitsburgh submitted to sets of comments on this modification proposal, and tha the second set, which was prepared ap- proximately nine months after the Region's notice requesting comments on the proposal, was any event considered, Soe i. Exh. Cat 3.2 VOLUMES

WASTE TECHNOLOGIES INDUSTRIES 663
question.” Petition for Review, Exh. E, at 2. Pittsburgh has never ar- ticulated any substantive basis for concluding that the Regional Ad- ministrator should have exercised his discretion to reopen this entire permit instead of employing a modification procedure that the regula- tions expressly allow.® We conclude, therefore, that the Region com. mitted no error by deciding not to employ revocation and reissuance.

We further conclude that Pittsburgh’s alternative argument, to the effect that revocation and reissuance was the Region’s only option because the WTI partnership named on the permit no longer exists, is completely irrelevant to the issue before us. The status of the WTI Partnership could conceivably have some relevance if a request by an existing “permittee” were actually a prerequisite for the kind of permit action undertaken here. But because the permit action before us is Properly regarded as an Agency-initiated modification, no request from any source was needed. Region V was fully authorized to add VRO to this permit by modification on its own initiative, and the alleged changes in the structure of the WTI partnership do not in any way limit the Region's authority. Pittsburgh's objection to the addition of VRO to “in addition, asthe Region points out in its briefs on appeal, the entre WT permit will in any event be reopened shorly a the Sate level Since this permit was originally issoed, the Sue of Ohio has become authorized, pursuant to RCRA § 30060), to administer the RCRA Sabie C pros
{gam in leu of EPA. When the permit expiees in January 1996, proceedings for reisouance ofthe Permit will be conclcted atthe Sate level A the Region explains (Me WT permit expites i January 1995***and WT is shed: ‘led to submits permit enewal application before the end of Uuly 19941, accordingly, the process that would be set in mo tion by a revocation and ressuance proceeding is already in effect, underway, The only consequence of following the revo. cation and reissuance procedure *** would be that the WTL facility would continue to operate without VRO on the permit rather than with VRO, while the facility's permit appictuion Is processed Response 1 Petition fr Review, at 18.19.

As discussed above, Pitsburgh’s comments tothe Region raised 2 purely legal argument, based on 40 CER § 270402), conceming the alleged necessity to employ revexaton aad weeewanee procedures instead of modification procedures to address the non preapproved addition of» news facility operator. Our cael review of the record shows that Pitsurgh raised no substantive objec tion whatsoever concerning VKO's qualifications to serve as RCRA fay operator Pitaburgs Patton for review belatedly suggests that there may be permit enforceabilty probleme due wo
\VRO's financial and technical capabilites, Petition for Review, at 12, but Ptsburgh even sow ak legesno facts in suppor of that untimely suggestion,

“As we have previously observed, se supra note 14, separate permit mosdication proceed- ings are curently pending before Region V involving the proposed addition of Von Roll seven Jn, (he ultimate parent of each ofthe WT partners) o this permit a. facility ownerand opens

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664 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
this permit, based on alleged changes in facility ownership that are unrelated to the addition of VRO, must therefore be rejected B. The Statute Pittsburgh also cites the text of RCRA itself for the view that permit revocation is a mandatory response to any violation of a RCRA permit. leaving no room whatsoever for Agency discretion. As authority for that contention, Pittsburgh points to RCRA section 3005(d), 42 US.
§ 6925(d), which states in relevant part
Upon a determination by the Administrator * * * of
noncompliance by a facility having a permit under this
title with the requirements of this section or section
3004 [42 U.S.C. § 6924], the Administrator * * * shall
revoke such permit.
Pittsburgh contends that by its unapproved transfer of operational responsibility to VRO, the WTI partnership committed an act of “non- compliance” with RCRA such that, in response, the statute mandates that “the Administrator * * * shall revoke” WTT'S permit.

Pittsburgh's reading of section 3005(d) must be rejected. As a pre- liminary matter, EPA itself has never adopted such an extreme inter. pretation of RCRA. The Agency's RCRA regulations have always made clear that permit termination, revocation and reissuance, and modifi. cation procedures need not be employed indiscriminately whenever there is legally adequate cause to employ those procedures, Since its Promulgation, 40 C.ER, § 270.41 (originally promulgated as 40 CER. §

Region V has indicated that twill eview various isues relating to fality ownership inthe context of those separate proceedings. Specifically, the Region explains

‘The Obio EPA has requested that WTI mex its permit o add

‘on Roll America, Inc. as an addtional owner and operator of

the WT facility. WT has complied with the request", These:

fore, since WTT i requesting that Von Roll Americal be listed a3

‘owner and operator ofthe Facliy,*** the US EPA wil not be

responding to comments related to the ownership ofthe WTL

facility at this time, **** [The U.S. EPA will respond toa come

‘ments relating tothe ownership isue ater it has had the oppor

“unity to complete is review of ll the comments on dhe pro

posed [Von Roll America transfer
Response to Petition for Review, Exh, at 1. The proposed akltion of Von Roll Americ appears fepresent at asin para response o alleged changes inthe orgiization ofthe WH pareership, such s those of which Pitsburgh complains. Because hat proposal isnot before us wecemens view concerning the sufiiency ofthe proposed moxificition as a esponse to Pasbuigh's con, ‘erm, and we express no view as to whether any esponse to those concemsisnecesear VOLUMES

WASTE TECHNOLOGIES INDUSTRIES 665
122.16) has provided that when adequate cause is determined to exist EPA may, but need not, commence proceedings to modify or revoke and reissue a RCRA permit; and, likewise, that when sufficient cause exists to terminate a RCRA permit, it is within EPA’s discretion to con- clude that a less drastic permit action would be more “appropriate.” See 40 CER. § 270.410b)(0).

According to the published regulatory history, no argument was ever made to the Agency, in a rulemaking context, to the effect that section 270.41 improperly treats violators more leniently than the RCRA statute itself requires. To the contrary, the concern expressed by commenters was that EPA might be tempted, notwithstanding section 270.41, to terminate RCRA permits without regard to the circumstances surrounding a violation. EPA addressed those concerns by explaining that as a practical matter other, less resource-intensive enforcement mechanisms would often make more sense than a full-scale effort to close down a permitted facility in response to any given instance of RCRA noncompliance:

The Director of a permit program must carefully exer-

cise discretion in allocating scarce “enforcement” re-

sources. Because of these limitations on resources, it

makes no sense to enforce against trivial infractions

when unremedied substantial infractions exist. This

alone in most cases should prevent the Director from

reading the termination causes too broadly. It should

also be clear that in most cases less drastic actions,

such as permit modifications, are available. * * * * This

does not mean, however, that if termination is not cho-

sen, modification is mandatory. In some cases neither

termination nor modification may be appropriate.
Consolidated Permit Regulations (Preamble), 45 Fed. Reg. 33,289, 33,316 (1980). To the extent that Pittsburgh disagreed with that inter pretation of RCRA section 3005(d), the proper time to have challenged the interpretation was during the ninety-day period immediately after section 270.41 was promulgated. See RCRA § 7006(a), 42 U.S.C. § 6976(a). This Board has no authority, in the context of a RCRA permit appeal, to entertain collateral challenges to the validity of regulations that expressly give the Administrator authority not to revoke a RCRA per- mit despite evidence of “noncompliance.” See In re Suckla Farms, Inc., UIC Appeal No. 92-7, at 15 (EAB, June 7, 1993); In re Ford Motor Co., RCRA Appeal No. 90-9, at 8 n.2 (Adm’r, Oct. 2, 1991).

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In this regard, we note that the Agency's interpretation is fully consistent with the contemporaneously enacted “Federal Enforcement” Provisions of RCRA section 3008. In particular, section 3008 autho- rizes—but quite explicitly does not require—the Administrator to sus. pend or revoke a RCRA permit in response to a RCRA violation, or to commence any of several other types of (administrative or judicial) enforcement proceedings. All of the enforcement options in section 3008 are phrased in permissive language, and the entire statutory en- forcement scheme commits the decision whether to commence an enforcement action (and, if so, in what form) to the Administrator's sound discretion: Except [in a RCRA-authorized State], whenever on the basis of any information the Administrator determines that any person has violated or is in violation of any requirement of this subtitle, the Administrator may is- sue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the Admin- istrator may commence a civil action in the United States district court * * * for appropriate relief, including a temporary or permanent injunction, Any order issued pursuant to this subsection may in- clude a suspension or revocation of any permit issued by the Administrator or a State under this subtitle * * * RCRA § 3008(a), 42 U.S.C. § 6928(a) (emphasis added). See also id.
§ 3008(c) (‘the Administrator may suspend or revoke any permit” in response to the permittee’s violation of a compliance order issued under subsection (a)) (emphasis added). We can think of no reason—particularly given the existence of a citizen-suit mechanism allowing private persons to bring an ac- tion directly against a RCRA permit violator—for reading the stat- ute in a manner that would nullify the Administrator's discretion under § 3005 as well as § 3008 by demanding that the Administrator institute permit revocation proceedings in response to any permit violation, no matter how trivial. The courts, moreover, have consis- tently held, under analogous provisions of the other federal envi- ronmental statutes, that the decision whether and how to respond to permit violations lies within the sound discretion of the permit- issuing authority—even where the statutory enforcement scheme VOLUME

WASTE TECHNOLOGIES INDUSTRIES 667
is phrased in apparently mandatory language. See Sierra Club v. Train, 557 F.2d 485, 491 (5th Cit. 1977) (despite apparently manda- tory language, enforcement under Clean Water Act § 309 is discre- tionary and cannot be compelled through a citizen suit against the Administrator); Dubois v. Thomas, 820 F.2d 943, 950-51 (8th Cir. 1987) (same); City of Seabrook v. Costle, 659 F.2d 1371, 1374-75 & n.3 (Sth Cir, 1981) (same, under Clean Air Act § 113); Missouri Coalition for the Environment v. Corps of Engineers, 866 F.2d 1025, 1032 n.10 (8th Cir.) (‘a decision not to modify, suspend or revoke a [Clean Water Act] Section 404 permit is one committed to the Corps' absolute discretion”), cert. denied, 493 U.S. 820 (1989); see also Harmon Cove Condominium Ass'n v. Marsh, 815 F.2d 949, 953 Gd Cir, 1987) CArmy Secretary's enforcement of compliance with a sec- tion 404 permit “is committed exclusively to his discretion,” and cannot be compelled by mandamus). For all of these reasons, we reject Pittsburgh's statutory argument, We decline to interpret RCRA § 3005(d) in a manner that would eliminate the broad discretion conferred upon the Administra- tor to respond to permit violations under the statute. IV. CONCLUSION For the reasons discussed herein, we conclude that we have juris- diction to decide whether the Regional Administrator was required, by the RCRA statute or the Agency's implementing regulations, to revoke the WTI permit at Pittsburgh's request upon concluding that a transfer of operational responsibilities to a non-permitted entity had occurred without prior Agency approval. We further conclude, on the merits, that neither the statute nor the regulations required the Regional Ad- ministrator to take such action, Accordingly, the petition for review submitted by the City of Pittsburgh is hereby denied So ordered. Opinion of Judge McCallum, concurring in the judgment: In my view, the Board's opinion unnecessarily reaches out to address issues that are not properly before us, while unfortunately declining to address the principal issue that is legitimately presented in this case.” Specifically, 1 believe our analysis of the merits of The Board also reaches out unnecessary to assume jurisdiction over this case, During the ‘course of the comment period on the Class 1 modification proposal, Pitsburgh objected t0 the modification onthe grounds that lack of prior notification prevents the permittee andthe Region from utilizing the Class 1 modification procedures to effect the modification. Pittsburgh also as sere that te corret procedure forthe Region to follow under the circumstances is to revoke and reissue the permit under 40 CER. § 270.41. The majority regards the latter assertion asthe Functional VOLUME 5

668 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Pittsburgh's appeal should begin and end with the question whether the prior Regional approval requirement that attaches to certain Class 1 RCRA permit modifications—including, pursuant to 40 CER. § 270.42 Appendix 1, the addition of a new operator to an existing RCRA per- ‘mit—is one that the Regional Administrator may waive in appropriate circumstances. If the Region's prior approval is waivable, then the Region’s decision in this case should simply be upheld as a Class 1 modification. Only if the Region’s prior approval is not waivable does there arise any need to examine the propriety of the Region’s action in this case as an Agency-initiated modification.

I conclude that waiver of prior approval for this Class 1 modifica- tion was indeed permissible as an exercise of the Regional ‘Administrator's discretion, for precisely the reasons cited by the Re- gion in its response to Pittsburgh's comments. The Region undertook a fact-specific analysis of the circumstances surrounding WTI’s un- timely submission of its modification request, and concluded, for rea- sons carefully explained by the Region and never seriously disputed by Pittsburgh, that the late-filed request should be accepted for con- sideration. In the crucial portion of its analysis, the Region explained:

The 90-day prior notification and other requirements of

40 CER § 270.40(b) are primarily procedural require-

ments designed to ensure sufficient time for the U.S.

EPA to evaluate proposed changes in ownership or

operational control prior to their occurrence. These re-

quirements do not confer procedural benefits on indi-

viduals, since the regulations do not provide for notice

or comment during the 90-day period; rather, they pro-

vide for notice of the change 90 days following its ap-

proval, with an opportunity (o request that the U.S. EPA
‘equivalent of a request under 40 CFR. § 124514) to revoke and reissue the permit, even though Pitsburgh never styled is comments in this manner or otherwise specially relied on § 124 5. The ‘majority also regards the Region's decision to implement the Class 1 modification as the Region's denial of Ptsbnghs request, rather than a sraightorward rejection ofa commenters remarks on the Clas 1 modification proposal, Based on these attenuated recharaccrzations ofthe fats, the Board then asserts that it has jurisdiction under §124.5(5) to review Pitsburgh’s informal appeal” ‘ofthe Region's denial of Pitsburgh's request to revoke and reissue the permit. Were it not fr this recharacterization ofthe facts, the Bosrd would not have jurisdiction to review Pitsburgh’s appa, for appeals tothe Hoard from Class 1 modification decisions are clearly disallowed, Se ante, a Such reaching out to find a jurisdictional bass to address the ments of Pitsburgh's appeal isnot necessary in any strict jurisprudential sense. Nevertheless, I do not oppose this assumption of juris- diction under 40 CER. § 124°5b), provided it is understood that the Board isnot also assuming jurisdiction under 40 CER. § 124.193. To the extent that fotnote 17 ofthe Boats opinion can be Consiicd to suggest reliance on section 12419 a an alternative source of our jurisdiction over this appeal, specifically disagree with any such suggestion, VOLUMES

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review and reject the change. 40 CFR § 270.42(a)(A). In
addition, the commenters were not prejudiced by WIT's
failure to submit a timely permit modification request.

The U.S. EPA provided notice of its analysis of the op-
erational control change and a formal opportunity to
comment prior to approving the change, which is more
opportunity for public participation than would have
been afforded under the standard Class 1 permit modi-
fication procedures, Moreover, VRO is functioning as
an additional operator rather than as a substitute op-
erator, and VRO had authority to participate in deci-
sion-making with respect to the incinerator as a mem-
ber of WTI regardless of its status as an independent
operator. Under these circumstances, it is appropriate
and permissible for the U.S. EPA to process WTI’s modi-
fication request.

Region V Response to Comments (Petition for Review, Exhibit E), at 3

(emphasis in original; footnote omitted).

Like the Region, I think it clear that consideration of WT!’s un- timely modification request could not and did not prejudice Pittsburgh or any other interested party. The regulations entitle no one, other than the Region itself, to prior notice of the addition of a new RCRA facility operator. It is frankly nonsensical to argue that a failure of timely notice to the Region should turn the entire decisionmaking sequence on its head, by allowing parties such as Pittsburgh—other- wise entitled to submit comments only after the permit has been changed—to wrest control over the modification process and to veto a Class 1 change, despite the Region's own considered judgment that an immediate change would enhance its ability to ensure compliance with the permit

In its only argument against the waivability of prior Regional ap- proval for the addition of a new RCRA facility operator, Pittsburgh attempts to equate a waiver of prior Regional approval with a waiver of the statutory permit requirement. The facts of this case demonstrate the fallacy of such reasoning. Here the Region, far from “waiving” the RCRA permit requirement found to have been violated by these per- mittees, acted vigorously to enforce that very requirement through administrative civil penalty proceedings that, as the Board's opinion demonstrates, the Region was under no statutory obligation to pros- ecute, No substantive obligations imposed by statute or regulation need be considered “waived” in order to sustain the Region’s permit action, in its entirety, as a Class 1 permittee-requested modification.

VOLUMES

670 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Because I would uphold the Region's action as a valid Class 1 modification, I do not join that portion of the majority opinion ad- dressing the merits of Pittsburgh's appeal. Although I agree with the Board that Pittsburgh's appeal should be denied, I arrive at this result for entirely different reasons VOLUMES