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Systech Envtl. Corp. v. EPA

Citation: 25 ELR 21247
No. Nos. 94-70419 et al., 55 F.3d 1466/40 ERC 1795/(9th Cir., 05/31/1995)

The court holds that the U.S. Environmental Protection Agency's (EPA's) decision to require an absentee landowner to certify that a lessee's application for a Resource Conservation and Recovery Act (RCRA) permit to operate a hazardous waste management facility on the leased property was prepared under the landowner's direction or supervision is arbitrary and capricious. The court first holds that EPA was not arbitrary or capricious in treating the absentee landowner as an "owner" under RCRA § 3005(a) and requiring compliance with the general RCRA permit application requirements at 40 C.F.R. § 270.10, and the certification requirements at 40 C.F.R. § 270.11. The regulatory history supports EPA's conclusion. Moreover, EPA's interpretation of § 270.10 is clear and requires all owners and operators to have permits, whether the owner applies separately for a permit under § 270.10(a) or signs an application prepared by the operator under § 270.10(b). Furthermore, the regulation's plain meaning supports EPA's conclusion that the absentee owner must, at a minimum, sign the permit application. EPA's conclusion also supports Congress' stated policy objective that owners share in the responsibility of compliance with RCRA standards. The court next holds that EPA's determination that § 270.11(d) requires an owner of land on which a hazardous waste management facility operates to certify that the permit application was prepared under the owner's direction or supervision is arbitrary and irrational when the owner is not also the facility operator. The court notes that blind application of § 270.11 (d) to require an absentee owner either to undertake the burdensome task of co-supervising the operator's application process or to commit perfury, would produce irrational results. The court holds that the absentee owner, through its submission of an alternate certification and its employment of various expert consultants to evaluate the permit application, satisfied § 270.11(d)'s requirements by demonstrating adequate knowledge of the nature and extent of the hazardous waste management activity on its property and by acknowledging its liability under RCRA and the attendant permitting requirements.

Counsel for Petitioner
Richard G. Stoll
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave. NW, Ste. 825, Washington DC 20036
(202)457-5100

Counsel for Respondent
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Hug, Canby and Hawkins, JJ.