Sanders Lead Co. v. Thomas

No. 86-7459 (11th Cir. April 6, 1987)

The court holds that Resource Conservation and Recovery Act § 7006(b)(1) does not provide it with jurisdiction to directly review an Environmental Protection Agency denial of an interim status facility's request for a waiver of regulatory requirements.

Counsel for Petitioner
James S. Stokes
Alston & Bird
1200 Citizens & Southern Nat'l Bk. Bldg., 35 Broad St., Atlanta GA 30335
(404) 586-1500

Counsel for Respondent
Joseph Friedman
Office of General Counsel, Environmental Protection Agency (LE-1325)
401 M St. SW, Washington DC 20460
(202) 475-8040

Michael D. Rowe
Land and Natural Resources Division
Department of Justice, Washington DC 20026-3986
(202) 633-2000

Before RONEY, Chief Judge, HILL and KRAVITCH, Circuit Judges.

[17 ELR 20649]

BY THE COURT:

The Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A. § 6901, et seq., requires a "permit" for the operation of a hazardous waste management facility. Sanders Lead Company, Inc. was operating under an "interim status" pending completion of its RCRA permit application. As an "interim status" facility, Sanders was subject to certain performance standards, including requirements for sudden and nonsudden accidental occurrences insurance coverage. Sanders applied for a variance from the nonsudden accident insurance requirement, which variance was denied by the Environmental Protection Agency (EPA), Region IV. The Region IV decision was affirmed on appeal to the EPA Administrator. Sanders then filed this petition for review challenging EPA's final action. EPA moved to dismiss for lack of jurisdiction.

Title 42 U.S.C.A. § 6976(b)(1) provides for a review in the appropriate Court of Appeals when the EPA takes final action "issuing, denying, modifying, or revoking any permit . . . ." Following the reasoning expressed in Hempstead County and Nevada County Project v. EPA, 700 F.2d 459, 462 (8th Cir.1983), we hold "that Section 6976(b) does not confer upon this Court jurisdiction for direct review of an 'interim status' determination made by the EPA pursuant to Section 6925(e)." 700 F.2d at 462. The Government cited an unpublished opinion of the Sixth Circuit which also follows the reasoning and result of Hempstead. See Granger Land Development Co. v. Thomas, 786 F.2d 1164 (6th Cir. 1986). No case directly to the contrary has been cited.

Respondents' motion to dismiss this appeal for lack of jurisdiction is GRANTED.