Thermalkem, Inc. v. U.S. EPA ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-14-1994
Thermalkem, Inc. v. U.S. EPA
Precedential or Non-Precedential:
Docket 93-3249
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-3249
___________
THERMALKEM, INC.,
Petitioner
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
___________
Appeal from United States Environmental Protection Agency
(RCRA No. 92-4)
___________
Argued: February 15, 1994
PRESENT: BECKER, HUTCHINSON and COWEN, Circuit Judges
(Opinion Filed: June 14, 1994)
____________
Angus Macbeth, Esquire (Argued)
Kathryn B. Thomson, Esquire
Sidley & Austin
1722 Eye Street, N.W.
Washington, DC 20006
Attorneys for Petitioner
Peter R. Steenland, Acting Assistant Attorney General
Environment and Natural Resources Division
Eileen T. McDonough, Esquire (Argued)
Environmental Defense Section
United States Department of Justice
10th & Constitution Avenue, N.W.
Washington, DC 20530
and
Brian Grant, Esquire
Office of General Counsel
1
United States Environmental Protection Agency
401 M Street, S.W.
Washington, DC
2
and
Mita Ghosh, Esquire
Office of Regional Counsel
EPA Region IV
345 Courtland Street, N.E.
Atlanta, GA
Attorneys for Respondent
____________
OPINION OF THE COURT
____________
HUTCHINSON, Circuit Judge.
Petitioner, ThermalKEM, Inc., the owner and operator of
a hazardous waste treatment facility in Rock Hill, South
Carolina, petitions for review of the Environmental Appeals
Board's ("EAB") dismissal of ThermalKEM's appeal of respondent,
United States Environmental Protection Agency's ("EPA"), decision
denying ThermalKEM's request to amend its pending permit
application. EAB held it lacked jurisdiction to hear EPA
Region IV's denial of ThermalKEM's proposed amendment to Part A
of its pending permit application.
EPA Region IV had denied the amendment after concluding
that it was an attempt by ThermalKEM to alter interim operating
status to an extent that required Region IV approval. ThermalKEM
argued the proposed amendment would only have permitted
ThermalKEM's facility to continue to process waste materials at
the same rate it had before EPA's addition of several compounds
to the class of substances EPA regulations define as hazardous.
3
ThermalKEM had incinerated these compounds at its treatment
facility before their classification as hazardous.
After EAB dismissed ThermalKEM's administrative appeal
for lack of jurisdiction, ThermalKEM filed this petition for
review. In its petition, ThermalKEM asks us to review EAB's
refusal to hear its challenge but not the merits of that
challenge. Congress has strictly circumscribed our jurisdiction
to review denials of applications for permits to dispose of toxic
substances. Therefore, for the reasons given below, we conclude
that we lack jurisdiction over the EAB decision dismissing,
without consideration of the merits, ThermalKEM's appeal of EPA
Region IV's denial of ThermalKEM's proposal to amend Part A of
its pending permit application.0
I.
ThermalKEM, Inc. filed this petition for review on
June 1, 1993, pursuant to section 7006(b) of the Resource
Conservation and Recovery Act ("RCRA" or "Act"), 42 U.S.C.A.
§ 6976(b) (West Supp. 1994), contesting EAB's refusal to hear, on
the merits, ThermalKEM's challenge to EPA's denial of the
proposed permit application amendment. ThermalKEM filed its
0
ThermalKEM contends the proposed amendment to Part A of its
pending permit application would not result in a burn of any
greater quantity of any particular chemical than originally
allowed under its interim status. We will assume that is true,
but note that the amendment would increase the quantity of
hazardous materials burned at ThermalKEM's treatment facility
because EPA has recently added some of the chemicals ThermalKEM
has been treating to the list of those that are hazardous. See
55 Fed. Reg. § 11798 (Mar. 29, 1990) (amending 40 C.F.R. §§ 261,
264, 265, 268, 271, 309).
4
petition for EAB review on January 31, 1992. EAB dismissed
ThermalKEM's petition on March 10, 1993, holding it lacked
jurisdiction to consider this appeal from the decision of an EPA
regional director on ThermalKEM's interim status. See In re
ThermalKEM, Inc., RCRA Appeal No. 92-4, slip op. at 4 (Mar. 10,
1993).
ThermalKEM is a Delaware corporation. It owns and
operates a hazardous waste facility in Rock Hill, South Carolina,
where it disposes of hazardous waste in various ways, including
incineration. RCRA governs the treatment, storage and disposal
of solid waste in the United States, both hazardous and non-
hazardous. Section 3005(a) of the Act, 42 U.S.C.A. § 6925(a),
requires an owner or operator of hazardous waste treatment,
storage or disposal facilities ("TSDF") to obtain a permit
governing the facilities' operation. Realizing that EPA could
not possibly issue all necessary permits to all the hazardous
waste treatment facilities in the United States as soon as RCRA
went into effect, Congress enacted § 3005(e) of the Act, 42
U.S.C.A. § 6925(e), as a transitional measure. Section 3005(e)
allows an owner or operator of a facility that was in existence
on November 19, 1980, (the effective date of RCRA) to continue
operations pending issuance of a final permit so long as two
conditions are met. First, the owner or operator of the TSDF
must timely notify EPA that it is operating a hazardous waste
facility. 40 C.F.R. § 270.70(a)(1) (1992); see also 42 U.S.C.A.
§ 6930(a). Second, the owner or operator must file "Part A" of a
RCRA permit application. See 40 C.F.R § 270.70(a)(2); see also
5
United States (EPA) v. Environmental Waste Control, Inc., 710
F. Supp. 1172, 1182 (N.D. Ind. 1989).0 Where an owner or
operator meets these two conditions, any TSDF in operation on the
relevant date automatically receives "interim status" and "shall
be treated as having been issued [a] permit until such time as
final administrative disposition of [the permit] application is
made . . . ." 42 U.S.C.A § 6925(e); see also 40 C.F.R.
§ 270.70(a). The governing regulations explicitly state that
interim status is not itself a "permit." 40 C.F.R. §§ 124.2,
270.2 (definition of permit). Moreover, interim status
facilities may not process hazardous wastes beyond the treatment
capacity specified on Part A of the facility's permit
application. If a facility operating on interim status wants to
process hazardous substances in a greater amount than it
represented it would or could in Part A of its permit
application, it must either receive EPA approval, see 40 C.F.R.
§ 270.72(a)(2), or qualify for an increase with respect to
certain wastes that become newly listed or identified after it
submits a revised Part A permit application. See 40 C.F.R.
0
The RCRA permit application consists of two parts. Part A
primarily gives general information. It includes, e.g, the name
and location of the facility, a general overview of the nature of
the operation and an estimate of the rate of the facility's
output of hazardous substances. 40 C.F.R. § 270.13. Part B of
the application is more detailed and includes specific
information relating to disposal facilities, environmental
impact, and other details necessary for the review of the permit
application. Id. § 270.14. EPA will not review the permit
application or issue a permit until it has received all of the
information required on Part B of the permit application. Id.
§ 124.3.
6
§ 20.72(a)(1).0 Interim status terminates after the appropriate
state and federal regulatory authorities render a final decision
0
Section 270.72(a) provides in relevant part:
(a) Except as provided in paragraph (b), the
owner or operator of an interim status
facility may make the following changes at
the facility:
(1) Treatment, storage, or disposal of
new hazardous wastes not previously
identified in Part A of the permit
application (and, in the case of newly
listed or identified wastes, addition of
the units being used to treat, store, or
dispose of the hazardous wastes on the
effective date of the listing or
identification) if the owner or operator
submits a revised Part A permit
application prior to such treatment,
storage, or disposal;
(2) Increases in the design capacity of
processes used at the facility if the
owner or operator submits a revised
Part A permit application prior to such
a change (along with a justification
explaining the need for the change) and
the Director approves the changes
because:
(i) There is a lack of available
treatment, storage, or disposal
capacity at other hazardous waste
management facilities, or
(ii) The change is necessary to
comply with a Federal, State, or
local requirement.
40 C.F.R. § 270.72(a) (1992). Whether ThermalKEM's facility
should automatically, under section 270.72(a)(1), receive
permission to continue operations on interim status as heretofore
upon mere submission of a revised Part A or must justify its
request under section 270.72(a)(2) seems to be the issue on the
merits, an issue not before us on this petition for review.
7
on the permit application, when the TSDF fails to timely submit a
complete Part B of the application, or when the TSDF fails to
comply with the rules governing operation on interim status. 40
C.F.R. § 270.73.
On November 17, 1980, ThermalKEM, through its
predecessor, Industrial Chemical Company, Inc., filed the
notification 42 U.S.C.A. § 6930(a) requires and Part A of its
permit application, thereby complying with the interim procedures
in RCRA and achieving interim status. In 1984, Congress amended
RCRA by enacting the Hazardous and Solid Waste Amendments Act of
1984 ("HSWA"), Pub. L. No. 616, 98 Stat. 3221 (1984) (codified as
amended at 42 U.S.C.A. §§ 6901-6987). HSWA established a time
schedule within which interim status facilities were to submit
Part B of the permit application. 42 U.S.C.A. § 6925; see also
40 C.F.R. § 270.73. The EPA and South Carolina Department of
Health and Environmental Control ("DHEC") asked ThermalKEM to
submit Part B of its application in accord with this schedule. In
January of 1984, ThermalKEM submitted Part B to both EPA
Region IV and the DHEC. In 1985, Congress authorized South
Carolina to implement its own hazardous waste program and DHEC
took the lead in processing ThermalKEM's application for a
permit. Between January 1984 and May 1987, ThermalKEM worked
with EPA and DHEC to complete Part B of ThermalKEM's permit
application. From time to time during this period, ThermalKEM
revised Part A of its permit application to reflect changes in
hazardous waste mass feed, pursuant to 40 C.F.R. §§ 270.10(g),
270.70, and 270.72.
8
In 1987, the DHEC advised ThermalKEM that its permit
application was complete and listed it for public inspection and
comment. In 1988, the EPA and DHEC approved the ThermalKEM
application and issued an operating permit for the facility for
one incinerator unit. Subsequently, two citizens' groups
formally protested issuance of the permit. Their protests
automatically put the TSDF back on interim status until the
protests were resolved. That has not yet occurred and ThermalKEM
remains on interim status.
On September 25, 1990, EPA's "organic toxicity
characteristics" rule ("OTC rule") became effective.0 ThermalKEM
concluded that the OTC rule redefined as hazardous a number of
previously non-hazardous substances it handled at its facility.
Believing its Part A application was no longer correct under the
OTC rule, ThermalKEM filed a revised Part A on September 21,
1990, pursuant to 40 C.F.R. § 270.12. The revision identified
the newly classified substances and showed a feed rate increase
from 2.85 to 5.35 tons per hour. Sixteen months later, on
January 8, 1992, EPA Region IV notified ThermalKEM that its
revised Part A application was a request to increase interim
status incineration which required justification and EPA approval
in accord with 40 C.F.R. § 270.72(a)(2). EPA also concluded that
0
See 55 Fed. Reg. 11,798 (March 29, 1990); 40 C.F.R. Part 261,
subpart C. "The rule, inter alia, establishes a new hazardous
waste characteristic based on the leachability of hazardous
constituents under the toxicity characteristic leaching procedure
and adds 25 new organic constituents to the list of toxic
constituents regulated under RCRA." In re ThermalKEM, Inc., RCRA
Appeal No. 92-4, slip op. at 2 n.2 (March 10, 1993) (citing 55
Fed. Reg. at 11,803; Appendix II to 40 C.F.R. Part 261).
9
ThermalKEM's request to increase its hazardous burning rate
should be denied unless ThermalKEM produced evidence of "trial
burns" establishing that the increases were safe.0 Accordingly,
EPA denied the Part A amendment.
On January 31, 1992, ThermalKEM petitioned the
Administrator of the EPA for review of the denial of the revised
Part A.0 On March 10, 1993, EAB, acting on behalf of the
Administrator under a regulatory delegation, see 40 C.F.R.
§ 124.19(a) (1992), concluded it lacked jurisdiction to hear the
petition.0 On June 1, 1993, ThermalKEM filed this petition for
judicial review.
At the threshold, we confront the question of our own
jurisdiction. Whether we have jurisdiction pursuant to 42
U.S.C.A. § 6976 is subject to plenary review. Vineland Chem. Co.
0
Trial burns are tests of the facility. The EPA requires trial
burns in certain cases to insure public safety. Trial burns
measure the feed rate at which an incinerator can operate without
producing proscribed emission rates. A facility must conduct new
trial burns in order to increase its feed rate. 40 C.F.R.
§ 270.42, App. I, L. 1, 2.
0
Before EAB, ThermalKEM argued on the merits that it was entitled
to amend its application under 40 C.F.R. § 270.72(a)(1) without
EPA approval. In the alternative to its position that EAB lacked
jurisdiction, EPA contended on the merits that ThermalKEM's
amendment was governed by 40 C.F.R. § 270.72(a)(2) which requires
EPA approval.
0
EAB has jurisdiction to consider "any condition of the permit
decision." 40 C.F.R. § 124.19(a). In a decision raising
principles and issues similar to those present in this petition
for review, EAB held that ThermalKEM's proposed amendment and
Region IV's denial thereof was not a "permit decision" but a
request to change interim status. ThermalKEM, slip op. at 3-4.
It held, therefore, that it lacked jurisdiction to consider
ThermalKEM's challenge and never reached the merits. Id. at 4.
10
v. United States Envtl. Protection Agency, 810 F.2d 402, 405-06
(3d Cir. 1987).
II.
It is axiomatic that our jurisdiction "is limited to
that conferred by statute." Vineland Chem. Co., 810 F.2d at 405.
Case law, however, "caution[s] this court not to construe
appellate review of 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." Id.
RCRA provides:
Review of the Administrator's action (1)
in issuing, denying, modifying, or revoking
any permit under section 6925 of this title
. . . may be had by any interested person in
the Circuit Court of Appeals of the United
States for the the [sic] Federal Judicial
District in which such person resides or
transacts such business upon application by
such person. Any such application shall be
made within ninety days from the date of such
issuance, denial, modification, revocation,
grant, or withdrawal . . . .
42 U.S.C.A. § 6976(b) (West Supp. 1993) (emphasis added).
In Vineland we addressed an analogous issue on our
jurisdiction under section 6976(b). Vineland Chemical Co., like
ThermalKEM, operated a TSDF under interim status after filing
Part A of its permit application. Vineland Chem. Co., 810 F.2d
at 404. In 1984, Congress amended the Act to give the EPA power
11
to terminate interim status if an interim facility did not comply
with "financial responsibility requirements." See 42 U.S.C.A.
§ 6925(e)(2). When Vineland submitted information to complete
Part B of its permit application, it did not provide assurance
that closure and post-closure costs would be covered. Relying on
section 6925(e)(2), EPA terminated Vineland's interim status and
Vineland petitioned for our review. Vineland Chem. Co., 810 F.2d
at 404-05.
EPA contested our jurisdiction arguing that termination
of interim status was not an act "issuing, denying, modifying, or
revoking any permit" that could be subject to court of appeals
review under section 6976 because a facility operating under
interim status was not operating under permit. Vineland argued
that "interim status is itself a permit." Id. at 406. We
rejected that argument. "The structure of § 6925 indicates that
Congress was quite careful in distinguishing between permits and
interim status. . . . We conclude that the statute does not
reflect any Congressional intent to include interim status within
the meaning of 'permit.'" Id.
Nevertheless, we went on to consider whether Congress
intended to provide judicial review in the court of appeals of
EPA's termination of a facility's interim status. We observed
that interim status could be terminated only by (1) acceptance of
the permit application; (2) denial of the permit application; or
(3) failure of the applicant to meet certain continuing
obligations essential to interim status. Id. at 407. We noted
that the first and second reasons for termination of interim
12
status are expressly reviewable under section 6976(b) but that
the statute does not explicitly provide for judicial review of
EPA's termination of interim status when a facility fails to meet
its continuing obligations. We concluded, however, that complete
termination of interim status for failure to comply with
continuing interim requirements "is the functional equivalent of
a denial of a permit application on the merits." Id. We
reasoned, "[b]oth result in the termination of the Agency's
proceedings and require the facility to cease operations." Id.
We then stated, "we can think of no reason why Congress might
have wished to relegate that category to the district court while
providing appellate review for the other two categories." Id.
Thus, where termination of interim status for failure to meet
certain qualifications was equivalent to a permit denial, we held
that the agency's action was subject to appellate review in the
courts of appeals. Id. at 407-08. We considered and rejected
EPA's argument that no agency action had occurred because the
termination was self implementing. Id. at 408. "[W]here the
operator has attempted to comply but has, in the Agency's eyes,
failed, we are not prepared to say the EPA has no obligation to
take a position . . . ." Id. Accordingly, we held that "interim
status terminations constitute agency actions reviewable in this
court [when] an attempt at compliance has been made and the
Agency has taken a definitive position that interim status has
terminated." Id. Vineland has not been universally accepted.0
0
See Sanders Lead Co. v. Thomas, 813 F.2d 1190, 1191 (11th Cir.
1987) (per curiam); Northside Sanitary Landfill, Inc. v. Thomas,
13
Vineland controls two issues in this case. First, it
clearly holds that interim status is not equivalent to permit
status. Vineland Chem. Co., 810 F.2d at 406. Second, it allows
court of appeals review of agency decisions that do not involve
permits when a party demonstrates that altering interim status is
the "functional equivalent" of the denial of a permit. Id. at
408.
Vineland therefore requires us to consider the nature
of the order ThermalKEM challenges before deciding whether we
have jurisdiction over the petition. Indeed, ThermalKEM does not
ask us to review the decision of Region IV rejecting its proposed
amendment to Part A of its permit application. Strictly
speaking, it asks us only to review the decision of the EAB that
it lacked jurisdiction to hear ThermalKEM's administrative appeal
of Region IV's denial of its proposed revision of Part A of its
permit application. Of course, we are nevertheless unable to do
so without satisfying ourselves of our own jurisdiction.
Because EAB's decision is not, on its face, a decision
on the merits of a permit or ThermalKEM's continuing interim
status but a decision about EAB's own powers to review orders, it
may be argued formalistically that the EAB decision is beyond the
scope of the review that section 6976(b) contemplates. Vineland,
however, holds that we should review EPA actions that have the
functional effect of termination under section 6976(b). Vineland
804 F.2d 371, 384 (7th Cir. 1986); Granger Land Dev. Co. v.
Thomas, 786 F.2d 1164 (6th Cir. 1986) (table); Hempstead County &
Nevada County Project v. United States Envtl. Protection Agency,
700 F.2d 459, 462 (8th Cir. 1983).
14
elevates the substance of the agency action over the form it
takes. Unquestionably, EAB has effectively affirmed Region IV's
denial of ThermalKEM's proposed amendment when it declined
jurisdiction over its administrative appeal. EAB's refusal to
entertain ThermalKEM's appeal made Region IV's action concerning
interim status administratively final, and thus we think we must
consider whether the EAB order is the "functional equivalent" of
a permit denial.0 We hold it is not.
We can quickly deal with ThermalKEM's first argument
that rejection of the proposed amendment to Part A of its permit
application is a permit denial. In Vineland, we specifically
held that termination of interim status is not a denial of a
permit. Based on this, we must reject ThermalKEM's contention
that the EPA's denial of its request to amend Part A of its
permit application is a permit denial subject to our review.
ThermalKEM also contends that EPA partially terminated
ThermalKEM's interim status for the incineration of certain
materials when it rejected ThermalKEM's amended Part A
application and that such a partial termination is reviewable
under section 6976(b) in accord with Vineland. We need not reach
or decide whether a denial of an increase in feed rate after a
change in EPA regulations constitutes a "partial termination."
Even if we were to agree with ThermalKEM and conclude that EPA's
actions did effect partial termination of ThermalKEM's interim
0
Cf. Ciba-Geigy Corp. v. Sidamon-Eristoff, 3 F.3d 40, 45 (2d Cir.
1993) ("The EAB's decision rejecting Ciba's petition for review
of the original issuance of the permit constitutes action of the
Administrator.").
15
status, EPA's action would not be reviewable under section
6976(b).
Vineland is materially different from this case. In
Vineland, EPA revoked Vineland's interim status, not only
terminating all agency consideration of Vineland's permit
application but also causing its facility to cease operation.
Here, EPA Region IV's act has at best altered ThermalKEM's
interim status by reducing its facility's interim capacity to
process hazardous wastes because EPA has added certain substances
ThermalKEM had been processing to the category of hazardous
wastes. In Vineland, we made it clear that we were considering a
termination of Vineland's interim status and the attendant
effects of terminating all the affected facility's operations. We
stated:
Because there is no indication of a
Congressional intent to require district
court review of terminations of interim
status for failure to provide information,
and because such terminations involve the
same kind of judicial review as and are the
functional equivalent of an interim status
termination by the denial of a permit, we
. . . conclude that all interim status
terminations under the original § 6925(e)
were rendered reviewable in the Courts of
Appeals by the enactment of § 6976(b) in
1980.
Vineland Chem. Co., 810 F.2d at 407-08 (emphasis added). We also
emphasized, "[w]e limit our holding that interim status
terminations constitute agency actions reviewable in this court
to situations in which an attempt at compliance has been made and
16
the Agency has taken a definitive position that interim status
has terminated." Id. at 408. We likened loss of interim status
to permit decisions because "[b]oth result in the termination of
the Agency's proceedings and require the facility to cease
operations." Id. at 407; see also id. at 408 ("Since our search
of the legislative history of the 1984 amendments has revealed no
indicia of Congressional intent to distinguish between different
kinds of interim status terminations, we . . . hold that agency
decisions under § 6925(e)(2) are reviewable in the Courts of
Appeal under § 6976(b)."). Because EPA's revocation of interim
status forced a cessation of disposal activity, we concluded that
EPA's actions were the functional equivalent of a permit denial.
In the instant case, no termination has occurred and ThermalKEM
concedes it "remains an interim status facility." Brief of
Petitioner at 7.
To be reviewable in a court of appeals under Vineland's
rationale, a change in interim status must cause the termination
of hazardous waste disposal and the cessation of attempts to
receive EPA approval to engage in regulated activity if it is to
be functionally equal to a permit denial. ThermalKEM asks us to
further expand Vineland's broad reading of section 6976(b) to
hold that any EPA decision which alters interim status is
reviewable in a court of appeals. We do not think that Vineland
should be extended in that way or that Congress intended to grant
persons operating hazardous waste facilities on interim status a
broad right to review in this or any other court of appeals.
17
Because termination of interim status and denial of a
permit both have the effect of halting operations and ending
agency consideration of the facility's permit application, we
concluded in Vineland that both should be subject to review in
the same forum. We thought a system that required separate
forums to review occurrences that are functionally similar and
lead to identical outcomes would be strange. Though termination
of interim status may be the functional equivalent of a permit
denial, modification of interim status is not. Not every
adjustment to interim status has that aspect of finality, and it
is plainly lacking here. A partial termination does not stop a
facility from operating, nor does it conclude EPA consideration
of the matter.0
ThermalKEM is not left without further avenues of
relief before the EPA and the judiciary. Once a final decision
is reached on its still pending permit, ThermalKEM can either
challenge the permit's restrictions in this Court under section
6976(b) or again apply to amend the permit. Courts of appeals
are not a forum for challenges to every interlocutory EPA action.
See, e.g., United Technologies Corp. v. United States Envtl.
Protection Agency, 821 F.2d 714, 721 (D.C. Cir. 1987) (declining
jurisdiction over challenge to regulation where potential for
further agency action on issue remained). Unless a party has no
0
Though situations may occur in which alteration of interim
status might have an effect, economic or otherwise, that prevents
a facility from operation, that is not the case here. ThermalKEM
has not alleged or shown that its Rock Hill plant can no longer
operate in light of the EPA's refusal to permit amendment of
Part A.
18
further recourse before the agency, courts of appeals lack power
to review the agency's interim decisions. Instead, our
jurisdiction to review EPA permit proceedings is limited to cases
in which the agency's act has effectively terminated the
operation of a facility on interim status and no further agency
action will take place. Vineland holds that facilities that have
had their interim status terminated in that way have suffered
final agency action that is functionally equivalent to a permit
denial. Only in these circumstances does Vineland hold that we
have jurisdiction to review an EPA action that causes or directs
a hazardous waste facility to cease operations. If a facility
remains in operation despite an administrative ruling which
modifies its interim status, further administrative review is
available after EPA takes final action on the facility's permit
application before EAB. Thereafter, this Court can review the
agency's underlying interlocutory decisions concerning the
permit. Review of every EPA decision that alters interim status
and the ensuing availability of piecemeal review would contravene
the fundamental policy of judicial efficiency that underlies the
finality that is a condition of judicial review.
If ThermalKEM remains dissatisfied with the EPA's
action, it may still ask a district court to review EPA's
interpretation of the statute's provision for interim status. See
Vineland Chem. Co., 810 F.2d at 407 (identifying district court
as alternate forum if court of appeals lacks jurisdiction); cf.
Hempstead County, 700 F.2d at 462-63 (transferring challenge to
interim status to district court under 28 U.S.C.A. § 1631 after
19
concluding section 6976(b) jurisdiction did not lie). In
Vineland, "we [could] think of no reason why Congress might have
wished to relegate [interim status terminations] to the district
court while providing appellate review for [direct permit
denials]," and concluded that resort to the district court was
inconsistent with the review structure implemented in RCRA.
Vineland Chem. Co., 810 F.2d at 407. A facility that can
continue to operate under a modified interim status does not face
a harsh result that is equivalent to termination of a permit.
Neither the text of section 6976(b) nor its legislative history
persuades us that Congress intended the courts of appeals to
review every change in interim status. We believe such decisions
should not be reviewed in an appellate court until they are
incorporated into a final permit decision or the functional
equivalent thereof. If interim judiciary review is necessary, we
think it should occur in a district court, a forum more suited to
that purpose.0
In sum, we hold that Vineland did not extend our
jurisdiction to review EPA's action affecting interim status
beyond agency determinations that are the functional equivalent
of permit denials because such action causes or requires the
interim operator to cease operation. While interim status
0
Cf. Hempstead County, 700 F.2d at 462 (holding court of appeals
not proper forum where, inter alia, proper record does not exist
for appellate review and district court better suited to fact
gathering task); Susquehanna Valley Alliance v. Three Mile Island
Nuclear Reactor, 619 F.2d 231, 241 (3d Cir. 1980) ("While the
court of appeals can devise procedures for the preparation of a
record . . ., the district has both procedures and facilities at
hand for that task."), cert. denied, 449 U.S. 1096 (1981).
20
terminations and permit denials both share the salient effect of
cessation of operation and an end to EPA consideration, a
modification of interim status will usually have neither effect.
Whatever modification of interim status EPA's denial of
ThermalKEM's proposed amendment may have, it is not "functionally
equivalent" to a permit denial, and we therefore have no
jurisdiction to review under section 6976(b) or otherwise to
decide ThermalKEM's petition for review. Accordingly, we lack
jurisdiction to review EAB's order dismissing ThermalKEM's appeal
from Region IV's decision and will dismiss ThermalKEM's petition.
21