Northside Sanitary Landfill, Inc. v. Thomas

Decision Date29 December 1986
Docket NumberNo. 85-2119,85-2119
Citation804 F.2d 371
Parties, 17 Envtl. L. Rep. 20,215 NORTHSIDE SANITARY LANDFILL, INC., Petitioner, v. Lee M. THOMAS, as the Administrator of the United States Environmental Protection Agency, and the United States Environmental Protection Agency, Respondents.
CourtU.S. Court of Appeals — Seventh Circuit

Warren D. Krebs, Parr, Richey, Obremskey & Morton, Indianapolis, Ind., for petitioner.

Michael A. McCord, Dept. of Justice, Washington, D.C., for respondents.

Before WOOD, COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The primary question that we will consider in addressing this petition for review of an order of the Administrator of the Environmental Protection Agency ("Administrator") denying the petitioner's hazardous waste management permit application, is whether the petitioner has standing to challenge remarks concerning the scope of closure of the petitioner's facility that were made by the Administrator during the permit denial proceedings. For the reasons stated below, we will dismiss the petition for review.

I
A. Statutory and Regulatory Provisions

The Resource Conservation and Recovery Act of 1976 ("Act"), codified as amended at 42 U.S.C. Secs. 6901-6991, governs the disposal of solid waste in the United States. In particular, Secs. 3001 through 3013 of the Act, codified as amended at 42 U.S.C. Secs. 6921-6934, regulate hazardous waste management and disposal. Section 3005(a) of the Act, codified as amended at 42 U.S.C. Sec. 6925(a), provides that "the Administrator shall promulgate regulations requiring each person owning or operating an existing [hazardous waste disposal] facility ... to have a permit issued pursuant to this section." Section 3004 of the Act, codified as amended at 42 U.S.C. Sec. 6924(a), requires that the Administrator "promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous wastes ..., as may be necessary to protect human health and the environment."

Recognizing that the Environmental Protection Agency ("EPA") could not issue permits to all hazardous waste applicants before the effective date of the Act, Congress provided that, under Sec. 3005(e) of the Act, the Administrator promulgate regulations that allowed the owner or operator of a hazardous waste management facility that was in existence on November 19, 1980, to file a "Part A application," and to continue hazardous waste disposal pending the final administrative action on the facility's application. The Part A application calls for minimal information concerning the nature of the applicant's business, a description of the hazardous waste management processes it employs, a specification of the types of hazardous wastes processed, stored, or disposed of at the facility, as well as maps, drawings and photographs of the facility's past, present, and future waste processing areas. Id. Sec. 270.13. If the Administrator finds no reason to believe that the Part A application does not meet the disclosure requirements of id. Sec. 270.13, once it has filed a Part A application and given proper notice of hazardous waste activities, an existing facility "shall have interim status and shall be treated as having been issued a permit." 42 U.S.C. Sec. 6925(e); 40 C.F.R. Sec. 270.70. The operation of a facility that has been granted interim status is limited to the types of wastes, as well as the processing, storage, and disposal procedures specified in the Part A application. Under 40 C.F.R. Sec. 270.71, the facility must comply with the operating standards set forth at 40 C.F.R. Part 265. A facility's interim status terminates either upon final administrative disposition of a permit application, 40 C.F.R. Sec. 270.73(a), or upon failure of the operator to furnish the full information required by the Part B application, as described below. 1

Following the approval of a facility's Part A application and the grant of interim status, the facility must file a "Part B application" with the EPA. The Part B application calls for detailed information, including chemical and physical analyses of the hazardous waste treated at the facility, a description of procedures for preventing contamination of water supplies, a determination of the applicable seismic standard for the facility, a determination whether the facility is located within a flood plain, and data relating to groundwater monitoring. Id. Sec. 270.14. The applicant must also furnish information concerning its use of hazardous waste containers, storage or disposal tanks, surface impoundments, waste piles, incinerators, land treatment facilities, and landfills. Id. Secs. 270.15-270.21. Upon successful completion of both the Part A and Part B application, an operator is issued a hazardous waste permit, and is required to comply with the standards set forth in id. Secs. 264.1-264.351 ("Part 264").

A facility that has been approved for interim status operation must prepare a written closure plan, a copy of which must be kept at the facility. Id. Sec. 265.112. The purpose of the closure plan is to "protect human health and the environment, [to prevent] post-closure escape of hazardous waste, hazardous waste constituents, leachate, contaminated rainfall, to [protect against the escape] of waste decomposition products to the ground or surface waters or to the atmosphere." Id. Sec. 265.111(b). Once closure has been ordered, the owner or operator of the facility must terminate operations in a manner that minimizes the need for further maintenance of the facility. Id. Sec. 265.111(a).

A closure plan must "identify the steps necessary to completely or partially close the facility at any point during its intended operating life and to completely close the facility at the end of its intended operating life." Id. Sec. 265.112(a). In addition, the closure plan must provide for post-closure care for a period of thirty years after the facility is closed. Id. Sec. 265.117(a). Post-closure measures include ground-water monitoring, maintenance of other monitoring and waste containment systems, and periodic reporting. Id. Sec. 265.117. The plan may be amended as changes in the operation of the facility so dictate. Id. Sec. 112(4)(b).

The owner or operator of a hazardous waste management facility must submit a closure plan to the appropriate EPA regional administrator at least 180 days before the date the facility is expected to begin closure. Id. Sec. 112(4)(c). However, if the EPA has terminated the facility's interim status and has not issued a hazardous waste permit for the facility, the closure plan must be submitted to the EPA no later than fifteen days after interim status is terminated. Id. Sec. 112(4)(c)(1). The public is provided an opportunity to comment on the submitted plan. Id. Sec. 112(4)(d). The regional administrator must approve, modify, or disapprove the closure plan within ninety days of its receipt. The owner or operator of the facility is given sixty additional days to modify or prepare a new plan should the Regional Administrator have modified or rejected the original plan. Id. Whatever modification or revision the Regional Administrator then makes of the operator's revised plan shall become the approved closure plan. Id.

Section 3005(c) of the Act, codified as amended at 42 U.S.C. Sec. 6925(c), provides that a state environmental agency, as authorized by the Administrator pursuant to 42 U.S.C. Sec. 6947(a), is responsible for the issuance of hazardous waste management permits. Section 3006 of the Act, codified as amended at 42 U.S.C. Sec. 6926, provides that a state may apply to the Administrator for authority to develop and enforce a hazardous waste program "in lieu of" a federal program and federal enforcement. 40 C.F.R. Secs. 271.1-271.137 ("Part 271") sets forth the requirements for authorizing state programs. Under these regulations, a state may obtain "interim authorization" in two "phases." Phase I tracks the regulations of 40 C.F.R. Secs. 265.1-265.430 ("Part 265"), and authorizes the state agency to, among other things, conduct closure proceedings for interim status facilities. See id. Sec. 271.28. Once a state obtains Phase I authorization, its regulations and procedures displace the federal interim status regulations. Phase II authorization allows the state to issue permits under standards corresponding to those found in Part 270, and to enforce standards corresponding to those found at Part 264.

Section 7006(b) of the Act, codified as amended at 42 U.S.C. Sec. 6976(b), provides that "[r]eview of the Administrator's action ... in issuing, denying, modifying, or revoking any permit ... may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person.... Such review shall be in accordance with sections 701 through 706 of Title 5." If a party has been aggrieved by the action of an authorized state agency, review of the agency's decision shall be had in accordance with the applicable state regulations.

B. Facts

The petitioner, Northside Sanitary Landfill, Inc., ("Northside"), operates a landfill near Zionsville, Indiana, and provides sanitary and hazardous waste disposal services for Indianapolis and Boone County, Indiana. Northside was in existence for many years prior to the passage of the Act. On November 18, 1980, Northside submitted a Part A application to the Administrator for a hazardous waste treatment and disposal permit. As part of its application materials, Northside included a hand-drawn scale map of its facility. The map delineated five areas within Northside's property boundary.

The first, the "Old Farm" area (also...

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    ...though it has the same effect as the revocation of a permit, is not reviewable under section 7006(b). Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 384 (7th Cir.1986). Other Courts of Appeals have also concluded they have no jurisdiction over interim status determinations under......
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2 books & journal articles
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