Vineland Chemical Co., Inc. v. U.S. E.P.A.

• Decision Date: 06 February 1987
• Docket Number: No. 86-3157,86-3157
• Citation: 810 F.2d 402
• Parties: , 17 Envtl. L. Rep. 20,555 VINELAND CHEMICAL CO., INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 402

810 F.2d 402

25 ERC 1564, 17 Envtl. L. Rep. 20,555

VINELAND CHEMICAL CO., INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 86-3157.

United States Court of Appeals Third Circuit.

Argued Nov. 3, 1986.

Decided Feb. 6, 1987.

Richard A. Penna, Barry S. Neuman (Argued), Schnader, Harrison, Segal & Lewis, Washington, D.C., Franklin J. Riesenburger, Greenblatt & Riesenburger, Vineland, N.J., for petitioner.

F. Henry Habicht, II, Asst. Atty. Gen., Land and Natural Resources Div., Elliott P. Laws (Argued), U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Defense Section, Washington, D.C., Francis S. Blake, Gen. Counsel, Lisa K. Friedman, Associate Gen. Counsel, Mark S. Greenwood, Asst. Gen. Counsel, Caroline Wehling, U.S.E.P.A., Office of Gen. Counsel, Solid Waste and Emergency Response Div., Washington, D.C., for respondent.

Before SLOVITER and STAPLETON, Circuit Judges and GREEN, District Judge. ^*

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Vineland Chemical Company (ViChem) petitions this court to review the determination made by the U.S. Environmental Protection Agency (EPA or Agency) that ViChem had not satisfied the relevant certification requirements under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Sec. 6925(e)(2) (Supp. II 1984), and thus could no longer operate its hazardous waste disposal facility under "interim status."

We hold first that the Court of Appeals has jurisdiction to review this termination of interim status. The RCRA provision creating court of appeals jurisdiction authorizes review of permit decisions but is silent with respect to interim status terminations. 42 U.S.C. Sec. 6976(b) (Supp. II 1984). While we find that interim status is not a permit in RCRA's statutory scheme, we hold that Sec. 6976(b), when read in conjunction with the statutory history and the case law favoring court of appeals jurisdiction over petitions for review of agency action, establishes the requisite statutory basis for this court's jurisdiction.

On the merits of the petition for review, we hold that the EPA's interpretation of the statute to require certification by November 8, 1985 is reasonable and is compatible with both the statutory language and the intent of Congress, and therefore we defer to the EPA's construction. Given the EPA's interpretation of the statute, the factual determination that ViChem had failed to satisfy the certification requirements was supported by the record and was neither arbitrary nor capricious.

I.

Vineland Chemical Company operates two surface impoundments which are classified as land disposal facilities for hazardous wastes. RCRA forbids operation of a hazardous waste disposal facility without a permit. 42 U.S.C. Sec. 6925(a) (Supp. II 1984). Prior to final administrative action on a permit application, however, qualified facilities are allowed to operate without a permit under a grandfather clause. Such permission to operate without a RCRA permit is termed "interim status." 42 U.S.C. Sec. 6925(e) (Supp. II 1984).

Since 1980, ViChem has operated its surface impoundments under interim status, having satisfied the statutory requirements of 42 U.S.C. Sec. 6925(e)(1). Interim status facilities must comply with operating requirements established by regulation. 40 C.F.R. Sec. 265 (1985). Among the interim status operating requirements are the financial responsibility requirements at issue in this case. These regulations require operators to acquire liability insurance and provide financial assurances that there will be sufficient resources available for closure and post-closure costs. ¹

In 1984, Congress amended RCRA to provide for termination of interim status for land disposal facilities, a classification which includes surface impoundments such as ViChem's, 50 Fed.Reg. 38,946, 38,947 (Sept. 25, 1985), if certain conditions were not satisfied. The 1984 amendment stated:

In the case of each land disposal facility which has been granted interim status under this subsection before November 8, 1984, interim status shall terminate on the date twelve months after November 8, 1984, unless the owner or operator of such facility--

(A) applies for a determination regarding the issuance of a permit under subsection (c) of this section for such facility before the date twelve months after November 8, 1984; and

(B) certifies that such facility is in compliance with all applicable groundwater monitoring and financial responsibility requirements.

Pub.L. No. 98-616, Sec. 213(a)(3), 98 Stat. 3221, 3241 (1984) (codified at 42 U.S.C. Sec. 6925(e)(2) (Supp. II 1984)).

In accordance with Sec. 6925(e)(2)(A), ViChem has submitted a Part B permit application to the New Jersey Department of Environmental Protection (DEP). The EPA has delegated responsibility for administering the RCRA permit program to the DEP as authorized by 42 U.S.C. Sec. 6926. No final action has yet been taken on the ViChem permit application.

On November 8, 1985, ViChem submitted to the EPA a document certifying compliance with groundwater monitoring and liability insurance requirements. ² The certification did not make any reference to financial assurances to cover closure and post-closure costs. On December 2nd, the EPA notified ViChem by letter that its interim status was terminated as of November 8, 1985 for failure to comply with the certification requirement of Sec. 6925(e)(2)(B). The letter notified ViChem that it could not continue to operate, that it was required to submit a closure plan, and that continued operation could subject ViChem to both civil and criminal penalties. In a letter to the EPA dated December 27, 1985, ViChem attempted to correct the omission by certifying that it had been in compliance with all of the financial responsibility requirements as of November 8. The EPA's reply, dated January 30, 1986, reaffirmed its position that interim status had terminated as of November 8, 1985.

On February 28, 1986, ViChem filed the instant petition in this court, seeking review of the EPA's decision that ViChem's interim status had terminated. Subsequently, the EPA brought an enforcement action in the U.S. District Court of New Jersey.

II.

The threshold question is whether this court has jurisdiction. The jurisdiction of the Courts of Appeal is limited to that conferred by statute. Modine Manufacturing Corp. v. Kay, 791 F.2d 267, 270 (3d Cir.1986); Hempstead County and Nevada County Project v. EPA, 700 F.2d 459, 461 (8th Cir.1983); City of Baton Rouge v. EPA, 620 F.2d 478, 480 (5th Cir.1980); 15 C. Wright, A. Miller & E. Cooper Federal Practice and Procedure Sec. 3901 (1976). While a statutory basis for jurisdiction is required, the cases of Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980) (per curiam), and Modine Manufacturing Corp. v. Kay, 791 F.2d 267 (3d Cir.1986), caution this court not to construe appellate review provisions too narrowly. To avoid unintended and anomalous results, statutes authorizing review of specified agency actions should be construed to allow review of agency actions which are "functionally similar" or "tantamount to" those specified actions.

In Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980) (per curiam), the Supreme Court interpreted a jurisdictional provision in the Clean Water Act which authorized the courts of appeals to review EPA actions "in issuing or denying any permit" under the National Pollutant Discharge Elimination System (NPDES) water pollution permit program. 33 U.S.C. Sec. 1369(b)(1)(F) (1982). In some states, the EPA had delegated the primary responsibility for implementation of this permit program to the state governments, and the EPA retained only the power to veto permits proposed by the states. In the remaining states, the EPA issued NPDES permits directly. The question faced by the Court was whether the Clean Water Act established court of appeals jurisdiction to review an EPA veto of an NPDES permit proposed by California. The court held that EPA denial of an NPDES permit and EPA veto of a state-proposed permit were "functionally similar," and thus court of appeals jurisdiction was appropriate. Id. at 196. The Court reasoned that finding no appeals court jurisdiction would result in an illogically bifurcated system in which review of a veto of a state-proposed permit would take place in district court while review of an EPA permit denial would occur in a court of appeals. Moreover, the additional level of judicial review for state-issued permits would result in delay. The Court was unwilling to adopt a statutory interpretation with such counterintuitive results absent a clear expression of Congressional intent.

In the case of Modine Manufacturing Corp. v. Kay, 791 F.2d 267 (3d Cir.1986), this court held that a statutory provision providing court of appeals jurisdiction for review of the EPA's promulgation of effluent standards under the Clean Water Act also provided jurisdiction to review rulings concerning the applicability of those standards to a particular discharger. This court reasoned that such rulings concerning applicability of standards were "tantamount to" the promulgation of the standards themselves. Id. at 269. "[W]here, as here, a statute allows for some appellate review of agency action, the Supreme Court has applied a corollary of the Abbott [Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ] rule, deciding that such jurisdictional provisions should be construed generously absent clear and convincing evidence of a contrary congressional intent." Modine, 791 F.2d at 270. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 745, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985) ("Absent a firm indication that Congress intended to locate initial [Administrative Procedure Act] review of agency action in the district courts, we will not presume that Congr...