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Northside Sanitary Landfill Inc. v. Thomas

decided: October 23, 1986.

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



Petition for Review of an Order of the United States Environmental Protection Agency.

Wood, Coffey, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Eschbach

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. §§ 6901-6991, governs the disposal of solid waste in the United States. In particular, §§ 3001 through 3013 of the Act, codified as amended at 42 U.S.C. §§ 6921-6934, regulate hazardous waste management and disposal. Section 3005(a) of the Act, codified as amended at 42 U.S.C. § 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. § 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 § 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. § 270.13. If the Administrator finds no reason to believe that the Part A application does not meet the disclosure requirements of id. § 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. § 6925(e); 40 C.F.R. § 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. § 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. § 270.73(a), or upon failure of the operator to furnish the full information required by the Part B application, as described below.*fn1

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. § 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. §§ 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. §§ 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. § 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. § 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. § 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. § 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. § 265.117(a). Post-closure measures include ground-water monitoring, maintenance of other monitoring and waste containment systems, and periodic reporting. Id. § 265.117. The plan may be amended as changes in the operation of the facility so dictate. Id. § 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. § 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. § 112(4)(c)(1). The public is provided an opportunity to comment on the submitted plan. Id. § 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. § 6925(c), provides that a state environmental agency, as authorized by the Administrator pursuant to 42 U.S.C. § 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. § 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. §§ 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. §§ 265.1-265.430 ("Part 265"), and authorizes the state agency to, among other things, conduct closure proceedings for interim status facilities. See id. § 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. § 6976(b), provides that "review 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 called the "Past Treatment and Disposal Area" or the "West Farm"), consisted of forty acres. Northside claims that it had not used the Old Farm for the disposal of hazardous wastes after the statutory cut-off date of November 19, 1980. The Administrator disputes this claim. The second, the "East Farm Area" (also called the "Current Treatment and Disposal Area"), consisted of approximately thirty acres. Northside and the Administrator agree that hazardous wastes were disposed of in the East Farm area after November 19, 1980. The third area, composed of two tracts and designated the "Proposed Future Treatment and Disposal Area" (also called the "North Farm Area"), consisted of sixty-four acres. In its brief before this court, the Administrator acknowledged that "it appears from the record that no wastes of any kind have been disposed of in this area." The fourth area was labelled the "Storage and Treatment Tank Area." The fifth and final tract (unnamed in the application) had upon it a storage barn, repair shop, and Northside's office.

In its Part A application, Northside requested approval of a "303 acre-feet" disposal capacity. Northside maintains that the disposal capacity proposed was solely for the thirty acre East Farm area. On June 9, 1982, the Region V Administrator acknowledged that Northside's application qualified it for interim status, and noted that a 303 acre-feet process design capacity has been approved for Northside's facility. On January 26, 1983, the Region V Administrator requested that Northside submit a Part B application by July 29, 1983. According to the Administrator, that application was received on August 8, 1983.

After the submission of Northside's Part B application, the Region V Administrator sent Northside three notices that the information contained in the application was deficient and, hence, the application did not comply with the applicable regulations. Northside failed by the required dates to correct the deficiencies. On April 30, 1984, Northside informed the Region V Administrator by letter that it was "official[ly]" withdrawing its Part B application. On July 25, 1984, the Region V Administrator, however, pursuant to 40 C.F.R. § 124.10, issued a notice of his tentative decision to deny Northside's permit application on the grounds that the application was deficient, did not adequately provide for the protection of groundwater, and that other "continuing environmental violations" had occurred. In accordance with 42 U.S.C. § 6974(b) and 40 C.F.R. §§ 124.11-124.12, a public hearing was held on August 28, 1984, at Zionsville, Indiana.

At the public hearing, the EPA stated that Northside's Part B application did not include closure information regarding the areas of its facility for which interim status had been granted. In response, Northside stated that the Region V Administrator had incorrectly considered the Old Farm Area as part of Northside's permit application. Northside maintained that it had sought a permit for a 303 acre-feet disposal capacity, and that this was to be located in the East Farm. Northside added that, of the thirty acres composing this area, only twelve acres had actually been used for the treatment and disposal of hazardous wastes. Northside did not, however, contest the denial of its Part B application.

On October 12, 1984, the Region V Administrator denied Northside's Part B application on the ground that Northside had failed to submit the necessary information. Pursuant to 40 C.F.R. § 270.73(a), the Region V Administrator also terminated Northside's interim status on the ground that a final administrative disposition had been made of Northside's permit application. In response to Northside's position at the public hearing, the Region V Administrator stated in his order that hazardous waste had been disposed of after November 19, 1980, in the Old Farm Area as well as the East Farm. The administrator concluded that "the entire hazardous waste landfill area outlined in the November 18, 1980, Part A application must be closed. This includes the 'Old Farm Area.'" The Region V Administrator's order disallowed any further hazardous waste storage, treatment, or disposal of hazardous waste at the Northside facility. Moreover, the order required Northside to commence immediate closure proceedings under the applicable Indiana regulations.

On November 8, 1984, pursuant to 40 C.F.R. § 124.19, Northside petitioned the Administrator for review of the Region V order that denied its permit application and ordered closure. Attached to Northside's petition was a copy of its Part A application with a drawing of the facility and a copy of an aerial photograph taken of the facility on September 9, 1980. Northside also included the revised "General Facility Description" from its Part A application, which description indicated that the forty-acre Old Farm Area had not been used for hazardous waste treatment and disposal since November 1980, and that the sixty-four acre North Farm Area had never been used for hazardous waste processing. Northside claimed (both before the Administrator and before this court) that, on January 4, 1985, the ...


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