Mueller v. U.S. E.P.A., 92-2625

• Decision Date: 25 May 1993
• Docket Number: No. 92-2625,92-2625
• Citation: 993 F.2d 1354
• Parties: Jim MUELLER; Eileen Nichols; Brenda White; Linda Poe, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Atlas Environmental Services, Inc.; Atlas Powder Company, Intervenors.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1354

993 F.2d 1354

Jim MUELLER; Eileen Nichols; Brenda White; Linda Poe, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Atlas Environmental Services, Inc.; Atlas Powder Company,

Intervenors.

No. 92-2625.

United States Court of Appeals,

Eighth Circuit.

Submitted March 16, 1993.

Decided May 25, 1993.

John Edmund Price, Springfield, MO, for appellant.

Russell M. Young, Washington, DC (Brian Grant & James Stevens, on brief), for appellee.

Byron E. Francis, on brief, St. Louis, MO, for intervenor.

Before JOHN R. GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Jim Mueller, Eileen Nichols, Brenda White, and Linda Poe petition for review of a final order denying review of the Environmental Protection Agency's approval of an incinerator permit. The EPA's Environmental Appeals Board denied the petitioners' request for review without a hearing, the Regional Administrator issued a final permit decision, and the petitioners filed a petition for review in this Court. We deny the petition for review.

In 1989, Atlas Environmental Services, Inc., a wholly-owned subsidiary of Atlas Powder Company, applied to the Missouri Department of Natural Resources for a permit under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k (1988), to build and operate a hazardous waste incinerator and related structures. In compliance with the Missouri Department and EPA's Memorandum of Agreement, Atlas filed only one permit application (over 1,000 pages) to obtain a joint permit from the Missouri Department and EPA. The EPA issued a portion of the permit for a storage/feed handling building, where limited quantities of waste would be stored and prepared for incineration. The EPA permit also imposes corrective action requirements on the entire Atlas Powder Company facility. The Missouri Department of Natural Resources issued the rest of the permit, including the operating requirements for the incinerator.

The petition for review before us involves only the EPA's portion of the permit. ¹ The petitioners argue: (1) that the EPA permit is based on clearly erroneous findings of fact and conclusions of law because it inappropriately incorporates provisions of the Missouri permit, the Missouri permit is not binding on the incinerator's landowner, and the EPA's incorporation refers to incorrect sections of the Missouri permit; (2) that the EPA's determination that there was sufficient geological and hydrological information is based on clearly erroneous findings of fact and conclusions of law because (a) Atlas submitted only preliminary studies, (b) there is no evidence that storage/feed handling building will comply with federal performance standards, (c) the environmental report contains inapplicable information and is not a detailed "geological assessment," and (d) there is no evidence that construction design details or specifications have been submitted to the EPA; (3) that the EPA could not sufficiently evaluate the quality of existing ground water based on the information it had; and (4) that the permit application itself identifies risk to human health.

We review the EPA's issuance of a permit only to determine if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 42 U.S.C. § 6976(b) (1988); 5 U.S.C. § 706(2)(A) (1988). As long as the EPA considered all of the relevant factors and its decision contains no clear error of judgment, we will not substitute our judgment. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

Although the petitioners' arguments are set forth in great detail and are extremely technical, we believe the issues are capable of a less complex response. First, the petitioners argue that the EPA permit is based on clearly erroneous findings of fact and conclusions of law in three ways. The petitioners claim that the EPA permit inappropriately incorporates provisions of the Missouri permit and that the Missouri permit is not binding on the facility's landowner--Atlas Powder Company. The petitioners, however, waived these arguments by failing to raise them during the comment period, at the public hearing, or before the Environmental Appeals Board. 40 C.F.R. § 124.19(a), (e) (1992); 40 C.F.R. § 124.13 (1992); see also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). The petitioners also assert that the EPA permit referred to incorrect sections of the Missouri permit, and therefore, does not regulate the storage/feed handling building. We reject this argument as it addresses no more than a typographical error which was corrected under the permit modification provisions of 40 C.F.R. § 270.42 (1988).

Second, the petitioners argue that the EPA's determination that there was sufficient geological...