Merck & Co., Inc. (Board decision, July 6, 2000)

Plain-English summary

Merck & Co., Inc. held a hazardous and solid waste corrective-action permit for its facility in Rahway, New Jersey. Barbara Sashau petitioned for review and raised concerns about monitoring, cleanup research, pollution, and the use of cleaned water. The Environmental Appeals Board found that several issues were not preserved during the public comment period. For the issues that were preserved, the Board found that the petition did not show clear error, an improper exercise of discretion, or an important policy issue warranting review. The Board denied the petition, leaving the permit in place.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.13 and 124.19; 42 U.S.C. §§ 6901, 6924, and 6928
• Outcome: The petition for review was denied, leaving the RCRA permit in place.
• Key point: A permit petitioner must preserve issues during the public comment period and explain why the agency's response warrants EAB review.

Full text (EPA EAB public release)

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

)
)
In the Matter of: )
)
Merck & Co., Inc. ) RCRA Permit Appeal No. 99-3 )
Docket No. NJD001317064 )
)
)

ORDER DENYING PETITION FOR REVIEW

Currently before the Environmental Appeals Board

(“Board”) is a Petition for Review (“Petition”) filed by Ms.

Barbara Sashau, to review a permit issued by the U.S.

Environmental Protection Agency, Region 2 (“Region”). The

Region issued the permit under the Hazardous and Solid Waste

Amendments of 19841 (“HSWA”), to Merck and Company, Inc.

(“Merck”) for a facility located in Rahway, New Jersey. Since

New Jersey is authorized to administer most of the RCRA

program within its jurisdiction, see 64 Fed. Reg. 41,823

(August 2, 1999), the permit issued by the Region is limited

1The Hazardous and Solid Waste Amendments (“HSWA”) of 1984, are amendments to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6902. HSWA provides the U.S. Environmental Protection Agency with the authority, among other things, to require owners and operators of treatment, storage and disposal facilities to investigate and/or clean-up hazardous waste released into the environment. See 42 U.S.C.
§§ 6924(u),(v) and 6928(h).
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to corrective action and other regulatory requirements not

within the scope of New Jersey’s authorized RCRA program.

In her Petition, Ms. Sashau does not clearly define the

issues she is attempting to raise, nor does she specifically

reference the permit terms affected. Nonetheless, we can

discern the following issues: (1) the New Jersey Department of

Environmental Protection (“NJDEP”) grants permit requests on a

“pro forma” basis, merely rubber-stamping proposals made by

companies for clean-ups; (2) no investigatory research has

been done on Merck waste; (3) a schedule for monitoring the

cleanup must be established in the permit and the actual

monitoring must be performed by an independent lab paid

through a trust fund established by Merck; (4) the State of

New Jersey has severe pollution problems caused by

pharmaceutical companies, which evidences that NJDEP is not

monitoring strictly enough; and (5) Merck executives should be

required to use “Merck cleaned-up water” on a daily basis.

She concludes by asking this Board to “examine [her] original

suggestions/recommendations to form the basis of this appeal.”

The Region responds to the Petition by arguing that:

(1) Ms. Sashau’s single-sentence reference to the totality of 3

the comments that she made during the public comment period

does not entitle her to Board review of those comments;

(2) most of the issues raised in her Petition were not raised

during the public comment period, and thus are not preserved

for review; and (3) as to the issues preserved for review, Ms.

Sashau fails to demonstrate either error, improper exercise of

discretion, or an important policy consideration that warrants

review by the Board.

DISCUSSION

A. Background

The underlying facts do not appear to be in dispute. On

May 26, 1999, the Region published: (1) a Public Notice of

Intent to Issue the Hazardous and Solid Waste Amendments

Permit (“Public Notice”); (2) a Statement of Basis for

Proposed Corrective Measures Under RCRA §§ 3004(u) and (v)

(“Statement of Basis”), and; (3) a Draft Hazardous and Solid

Waste Amendments of 1984 Permit (“Draft Permit”), for Merck’s

Rahway, New Jersey facility. In accordance with 40 C.F.R.

§ 124.10, a public comment period on Merck’s Draft Permit was

held from May 27, 1999, until July 12, 1999. Responsiveness

Summary for the Issuance of the Hazardous and Solid Waste 4

Amendments of 1984 Permit (“Responsiveness Summary”) at 1-2,

Response of Region 2 to Permit Appeal at 2.

Ms. Sashau filed comments on June 2, 1999. Letter from

Barbara Sashau, June 2, 1999. The Region responded to Ms.

Sashau’s (and other) comments in its Responsiveness Summary

and the permit was issued on October 7, 1999. Ms. Sashau’s

Petition was timely filed on October 26, 1999.

B. Standard of Review and Procedural Requirements

Appeals of RCRA permits are governed by 40 C.F.R.

§ 124.19 (Appeal of RCRA, UIC, NPDES, and PSD Permits). That

section sets forth the time, eligibility, and substantive

requirements for a valid appeal of an Agency decision to issue

a permit under RCRA.

A RCRA permit ordinarily will not be reviewed unless it

is based on a clearly erroneous finding of fact or conclusion

of law, or involves an important matter of policy or exercise

of discretion that warrants review. 40 C.F.R. § 124.19; see,

e.g., In re Caribe General Electric Products, RCRA Appeal No.

98-3, slip op. at 9 (EAB, Feb. 4, 2000), 8 E.A.D. ____; In re

Austin Powder Co., 6 E.A.D. 713, 715 (EAB 1997); In re

Johnston Atoll Chem. Agent Disposal System, 6 E.A.D. 174, 178

(EAB 1995); In re Allied-Signal, Inc., 5 E.A.D. 291, 292 (EAB

1994).
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Furthermore, the preamble to section 124.19 states that

"this power of review should only be sparingly exercised," and

that "most permit conditions should be finally determined at

the Regional level * * *." 45 Fed. Reg. 33,412 (May 19, 1980).

The burden of demonstrating that review is warranted is on the

petitioner. 40 C.F.R. § 124.19(a); Allied-Signal, 5 E.A.D. at

292, citing In re Laidlaw Environmental Sciences, 4 E.A.D.

870, 876(EAB 1993).

When petitions for review are filed by individuals

unrepresented by an attorney, such as Ms. Sashau, the Board

tries to interpret those petitions in a light that is most

favorable to those individuals. In re Beckman Production

Services, 5 E.A.D. 10, 19 (EAB 1994). However, those

individuals are not excused from compliance with EPA rules and

regulations. See, e.g., In re Jiffy Builders, CAA Appeal No.

98-2, slip op. at 8 (EAB, May 25, 1999), 8 E.A.D. ____, citing

In re Rybond 6 E.A.D. 614, 627 (EAB 1996)(“The fact the

[Respondent] who is not a lawyer, chooses to represent himself

• • • does not excuse Respondent from the responsibility of

complying with the applicable rules of procedure”)(citations

omitted). Further:

While the Board does not expect or demand that such petitions will necessarily conform to exacting and 6
technical pleading requirements, a petitioner must nevertheless comply with the minimal pleading standards and articulate some supportable reason why the Region erred in its permit decision in order for the petitioner's concerns to be meaningfully addressed by the Board.

Beckman, 5 E.A.D. at 19.

One of the prerequisites to obtaining Board review is

that a petitioner must "raise all reasonably ascertainable

issues and submit all reasonably ascertainable arguments

supporting their position by the close of the public comment

period" 40 C.F.R. § 124.13; In re RockGen Energy Center, PSD

Appeal No. 99-1, slip op. at 7 (EAB Aug. 25, 1999), 8 E.A.D.

____; In re Jett Black, Inc., UIC Appeal Nos. 98-3 & 98-5,

slip op. at 8 (EAB, May 27, 1999), 8 E.A.D. ___; In re Encogen

Cogeneration Facility, PSD Appeal Nos. 98-22 through 98-24,

slip op. at 8 (EAB, March 26, 1999), 8 E.A.D. ___.

“The effective, efficient and predictable administration

of the permitting process demands that the permit issuer be

given the opportunity to address potential problems with draft

permits before they become final." RockGen, slip op. at 7

quoting Encogen, slip op. at 8. "In this manner, the permit

issuer can make timely and appropriate adjustments to the

permit determination, or, if no adjustments are made, the 7

permit issuer can include an explanation of why none are

necessary." In re Essex County (N.J.) Resource Recovery

Facility, 5 E.A.D. 218, 224 (EAB 1994) (quoting In re Union

County Resource Recovery Facility, 3 E.A.D. 455, 456 (Adm'r

1990)).

Consequently, Ms. Sashau was required, among other

things, to: (1) provide the Board with reasons supporting a

review; and (2) demonstrate that issues being raised for

review in the petition were raised during the public comment

period. 40 C.F.R. § 124.19(a), 40 C.F.R. § 124.13.

C. Issues Raised in the Petition

We note initially that Ms. Sashau requested that the

Board examine her original recommendations to form the basis

for her appeal. Petition at 4. However, the mere reference

to comments made during the public comment period is an

inadequate basis for seeking review. The Board has previously

stated that:

[A] petitioner may not simply reiterate its previous objections to a draft permit. Rather, a petitioner must demonstrate why the Region's response to those objections (the Region's basis for its decision) is clearly erroneous. In re Envotech, L.P., 6 E.A.D. 260, 268 (EAB 1996) (quoting In re LCP Chem., 4 E.A.D. 661, 664 (EAB 1993)); see also In re Austin Powder Co., 6 E.A.D. 713, 721 (EAB 1997) (rejecting review of RCRA permit on particular issue because petitioner simply reiterated previous objections to a draft permit).
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Caribe General Electric Products, slip op. at 22 (EAB, Feb. 4,

2000), 8 E.A.D. ____. Ms. Sashau does not even attempt to

show that the Region’s response to the comments she

incorporated by reference were “clearly erroneous.”

Consequently, we will only consider those issues that were

specifically raised in her Petition.

In this instance, only two of the issues that Ms. Sashau

raised in the Petition satisfy the requirement articulated in

40 C.F.R. § 124.13 of being raised during the public comment

period.2 Those two issues address monitoring requirements and

the use of “Merck-cleaned” water by Merck executives.

With regard to these issues, Ms. Sashau must still show

that these issues are either: (1) based on findings of fact or

conclusions of law that are clearly erroneous as required by

40 C.F.R. § 124.19(a)(1); or (2) reflect exercises of

discretion or important policy considerations that should be

reviewed by the Board as required by 40 C.F.R. § 124.19(a)(2).

As stated above, Ms. Sashau bears the burden of demonstrating

that review of these issues is warranted. 40 C.F.R.

2
We are denying review of the following issues for failure to comply with 40 C.F.R. § 124.13: (1) NJDEP’s granting of permits on a “pro-forma” basis; (2) alleged lack of investigatory research performed on Merck waste; and (3) pollution problems caused in New Jersey by pharmaceutical companies. 9

§ 124.19(a); Allied-Signal, 5 E.A.D. at 292 (EAB 1994). We

find that she has not met this burden.

With regard to the monitoring and independent lab issue,

the Petition does not address the explanation set forth by the

Region in the Responsiveness Summary. The Region explained

that any results offered by Merck would be subject to the

review and approval of the Region and the NJDEP.

Responsiveness Summary at 4, see also Response of Region 2 to

Permit Appeal at 9. In the absence of information addressing

why the Region’s explanation reflects either error and/or an

important policy consideration warranting Board review, Ms.

Sashau fails to meet her burden. See Caribe General Electric,

slip op. at 9 (EAB, Feb. 4, 2000), 8 E.A.D. ____.

Consequently, the Board will not review this issue.

With regard to the suggested requirement that Merck

executives be required to use “Merck-cleaned water” in their

homes, the Region explained that the proposed corrective

measures were more protective of human health and the

environment than Ms. Sashau’s proposal. Responsiveness

Summary at 4, see also Response of Region 2 to Permit Appeal

at 9. Here again, inasmuch as the Petition does not address

that explanation, Ms. Sashau fails to meet her burden. 10

CONCLUSION

In light of the Petitioner’s failure to meet threshold

procedural requirements and failure to meet the burden of

demonstrating that review is warranted, the Board finds

inadequate basis for review of the permit and the Petition for

Review is denied.

So ordered.

Dated: 7/6/00
ENVIRONMENTAL APPEALS BOARD

By: /s/
Edward E. Reich
Environmental Appeals Judge
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Certificate of Service

I hereby certify that copies of the foregoing Order Dismissing Petition for Review in the matter of Merck & Co., Inc., RCRA Permit Appeal No. 99-3, were sent to the following persons in the manner indicated:

First Class Mail
Ms. Barbara Sashau
15 Elm Street
Florham Park, New Jersey 07932

Inter-Office Mail Stuart N. Keith, Esq.
U.S. Environmental Protection
Agency, Region III
Office of Regional Counsel
290 Broadway
New York, New York 10007-1866

Dated: 07/06/00
/s/
Annette Duncan
Secretary