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Vineland Chemical Co. v. United States Environmental Protection Agency

filed: February 6, 1987.

VINELAND CHEMICAL CO. INC., PETITIONER
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT



PETITION FOR REVIEW ENVIRONMENTAL PROTECTION AGENCY

Author: Stapleton

BEFORE: SLOVITER and STAPLETON, Circuit Judges and GREEN, District Judge.*fn*

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. § 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. § 6976(b) (Supp. II 1984). While we find that interim status is not a permit in RCRA's statutory scheme, we hold that § 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. § 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. § 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. § 6925(e)(1). Interim status facilities must comply with operating requirements established by regulation. 40 C.F.R. § 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.*fn1

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, § 213(a)(3), 98 Stat. 3221, 3241 (1984) (codified at 42 U.S.C. § 6925(e)(2) (Supp. II 1984)).

In accordance with § 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. § 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.*fn2 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 § 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 ...


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