Yellowstone Refining Company, Cody Refinery

Plain-English summary

Yellowstone Refining Company challenged an EPA post-closure permit for its closed refinery near Cody, Wyoming. While the appeal was stayed for settlement discussions, Wyoming received authorization to run its hazardous-waste program and issued Yellowstone a replacement permit. The parties asked the EAB to declare the EPA permit null and void and dismiss the appeal with prejudice. The Board dismissed the appeal with prejudice because the replacement permit made the dispute moot, but it declined to issue the requested formal finding because the record did not provide enough information. The Board accepted the Region’s representation that the EPA permit had been superseded.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 6901-6992k and 42 U.S.C. § 6926(b).
• Outcome: The appeal was dismissed with prejudice as moot; the requested separate null-and-void finding was not issued.
• Key point: A superseding state permit can moot an appeal of an EPA permit, while the EAB may decline to make a broader formal finding without sufficient information.

Full text (EPA EAB public release)

         BEFORE THE ENVIRONMENTAL APPEALS BOARD
      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                    WASHINGTON, D.C.




                             )

In re: )
)
Yellowstone Refining Company ) RCRA Appeal No. 94-9
Cody Refinery )
)
Docket No. WYD006230189 )
)

                 ORDER DISMISSING APPEAL

On June 15, 1994, Yellowstone Refining Company filed a

petition seeking review of a post-closure permit issued by U.S.

EPA Region VIII under the Resource Conservation and Recovery Act

of 1976 ("RCRA"), as amended by the 1984 Hazardous and Solid

Waste Amendments, 42 U.S.C. §§ 6901-6992k, for Yellowstone’s

closed refinery located near Cody, Wyoming. See Petition for

Review of RCRA Final Post-Closure Permit. By joint request of

the parties, this matter has been stayed since September 7, 1994,

to allow the parties to engage in settlement negotiations with

the intent of settling or narrowing the issues for review.

The parties have now filed a joint motion asking that the

Board dismiss the appeal with prejudice and issue a formal

determination "that the permit issued by EPA that is the subject

of this appeal is irrevocably nullified and cannot in the future

be given any legal effect whatsoever." Joint Motion for Finding

that EPA’s Permit is Null and Void and to Dismiss With Prejudice
for Mootness and Withdrawal of Respondent’s Motion to Dismiss

("Joint Motion") (January 9, 1997).1 The Joint Motion states

that on October 18, 1995, the State of Wyoming received

authorization to carry out its hazardous waste program in lieu of

EPA,2 and that:

 Pursuant to that authority, the State of Wyoming issued
 a permit (in lieu of the EPA permit appealed by
 Petitioner) to Petitioner on September 1, 1996. As a
 result, the permit issued by EPA is now a nullity and
 without legal effect. Consequently, this action is
 moot.

Joint Motion at 1. For good cause shown, the petition for review

is dismissed with prejudice. With regard to the parties’ request

that the Board make a formal finding that the EPA-issued permit

is null and void, the Board does not have sufficient information

before it at this time to make such a finding. However, the

Region (by signing the Joint Motion) has represented that the

EPA-issued permit has been superseded by issuance of the State

 1
  Prior to submission of the Joint Motion, the Region

submitted its own motion to dismiss the appeal dated December 30,
1996. Respondent’s Motion to Dismiss with Prejudice for
Mootness. At the parties’ request, the Region’s motion has now
been superseded by the Joint Motion.
2
See RCRA § 3006(b), 42 U.S.C. § 6926(b).
permit, and that EPA’s permit is now null and void. We conclude

that these representations are binding on the Region.

So ordered.

Dated: 1/13/97 ENVIRONMENTAL APPEALS BOARD

                         By:           /s/
                                 Kathie A. Stein
                         Environmental Appeals Judge

CERTIFICATE OF SERVICE

 I hereby certify that copies of the forgoing Order

Dismissing Appeal in the matter of Yellowstone Refining Company,
Cody Refinery, RCRA Appeal No. 94-9, were sent to the following
persons in the manner indicated:

First Class Mail Cynthia L. Goldman
Postage Prepaid: Gibson, Dunn & Crutcher
1801 California Street
Suite 4100
Denver, CO 80202

                         Dana J. Stotsky (8LEP)
                         Senior Enforcement Attorney
                         U.S. EPA, Region VIII
                         999 18th Street
                         Suite 500
                         Denver, CO 80202-2466

                         Mark Barrish
                         Sr. Assistant Attorney General
                         123 State Capitol Building
                         Cheyenne, Wyoming 82002

Dated: 1/13/97 /s/
Mildred T. Johnson
Secretary