1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

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1 

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 
2 

United States Environmental Protection Agency 

401 M Street, S.W. 

Washington, DC 
3 

 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. 
4 

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 

 

0ThermalKEM 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). 
5 

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 nonhazardous. 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
6 

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. 

 

0The 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. 
7 

§ 20.72(a)(1).0 Interim status terminates after the appropriate 

state and federal regulatory authorities render a final decision 

 

0Section 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. 
8 

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. 
9 

 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 

 

0See 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). 
10 

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. 

 

0Trial 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. 

0Before 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. 

0EAB 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. 
11 

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 
12 

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 
13 

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

 

0See Sanders Lead Co. v. Thomas, 813 F.2d 1190, 1191 (11th Cir. 

1987) (per curiam); Northside Sanitary Landfill, Inc. v. Thomas, 
14 

 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). 
15 

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 

 

0Cf. 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."). 
16 

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 
17 

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. 
18 

 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 

 

0Though 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. 
19 

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 
20 

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 

 

0Cf. 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). 
21 

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.