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Vineland Chem. Co. v. EPA

Citation: 17 ELR 20555
No. No. 86-3157, 810 F.2d 402/25 ERC 1564/(3d Cir., 02/06/1987)

The court holds that it has jurisdiction to review a determination by the Environmental Protection Agency (EPA) to terminate a facility's interim status under the Resource Conservation and Recovery Act (RCRA) and upholds EPA's interpretation of RCRA's requirement for certification by November 8, 1985. The plaintiff had operated a facility permitted under RCRA's interim status provisions, and in filing the RCRA compliance certification on November 8, 1985, as required by the 1984 RCRA Amendments, had omitted references to financial responsibility requirements. The defendant submitted a corrected certification on December 27, 1985, but EPA determined that the defendant had not complied with RCRA's certification requirement.

The court first rules that affirmative decisions by EPA on the merits to terminate interim status are reviewable in the courts of appeals and holds that appellate review is similarly appropriate for decisions that interim status has been terminated by a facility's improper certification or regulatory compliance. The court rules that interim status is not a RCRA permit and thus the appeal is not within the literal language of RCRA § 7006(b). Nonetheless, the court observes that statutory provisions granting review in the courts of appeals are to be given common sense review to determine congressional intent. Congress intended all interim status terminations to be reviewable in the courts of appeals when it enacted § 7006(b) in 1980. Further, Congress did not intend to distinguish between the original forms of interim status terminations and the new form of termination added by the 1984 Amendments in § 3005(e)(2). The court distinguishes this case from the situation in which the interim status facility made no certification at all by November 8, 1985, observing that there may be no EPA decision to review in such a case, and limits its holding to situations in which the interim status facility attempted timely compliance.

Turning to a substantive review of EPA's action, the court initially holds that EPA reasonably interprets RCRA 3005(e)(2) as requiring actual certification by November 8, 1985, not merely subsequent certification that compliance was achieved on that date. Finally, the court holds that EPA's decision not to accept the facility's later correction to its compliance certification was not arbitrary or capricious.

Counsel for Petitioner
Barry S. Neuman, Richard A. Penna
Schnader, Harrison, Segal & Lewis
1111 19th St. NW, Washington DC 20036
(202) 463-2900

Franklin J. Riesenburger
Greenblatt & Riesenburger
200 N. 8th St., Vineland NJ 08360
(609) 691-0424

Counsel for Respondent
Elliot P. Laws
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Caroline Wehling
Office of General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before Sloviter and Green,* JJ.