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Northside Sanitary Landfill, Inc. v. Thomas

Citation: 17 ELR 20215
No. No. 85-2119, 804 F.2d 371/25 ERC 1065/(7th Cir., 10/23/1986)

The court holds that an applicant for a hazardous waste permit under the Resource Conservation and Recovery Act (RCRA) does not have standing to challenge remarks made by the Environmental Protection Agency (EPA) Regional Administrator during permit denial proceedings, concerning the scope of closure of the applicant's facility. The court first reviews the procedural history of the case, including denial of a RCRA permit by the EPA Regional Administrator, denial of a petition to the EPA Administrator to review the Regional Administrator's remarks made at a public hearing on the RCRA permit, and a denial of a petition that the EPA Administrator reconsider his original denial.

The court first holds that it has jurisdiction under RCRA § 7006(b), since a petition for judicial review within 90 days of the first denial by the EPA Administrator is sufficient to invoke jurisdiction, even though it is simultaneously pursued with a petition for reconsideration filed with the EPA Administrator. Moreover, the applicant's failure to amend its original petition to reflect the Administrator's denial of the petition for reconsideration does not affect the court's jurisdiction.

The court next holds that the applicant lacks standing to challenge the Administrator's remarks. The court rejects the applicant's argument that the remarks injured it by mandating the closure of its entire facility, holding that the remarks do not have legal effect in a state with authority to determine RCRA closure requirements. The applicant's attempts to characterize its petition as a challenge to the termination of its interim status or the denial of its Part B permit application are unavailing, since RCRA § 7006(b) does not provide judicial review of the termination of interim status and an evidentiary hearing on the Part B application would not redress the applicant's claimed injury. Even assuming that the Administrator's remarks confer standing by causing the state not to exercise independent judgment regarding the site closure plan, the claim will not be ripe for review until the state agency issues a final administrative decision.

Counsel for Petitioner
Warren D. Krebs
Parr, Richey, Obremsky & Morton
Suite 500, 121 Monument Circle, Indianapolis IN 46204
(317) 632-3686

Counsel for Respondents
Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

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