Thermalkem, Inc. v. U.S. EPA

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Precedential or Non-Precedential: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