Second, the record on appeal does not support the assertion that the five year term was inadvertent. The Fact Sheet describing the provisions of the draft permit as well as the draft permit itself proposed a 5 year term. In addition, as the Region states in its Response:

The five year term coincides with the term of the
State RCRA permit. Setting the same term for both
portions of the permit will simplify the review and
renewal process for both GMC and the regulatory
agencies, as both will be reviewed at the same time.

Region's Response at 5.

Finally, GMC does not expressly challenge the five year term, nor does it give any reason why such a term is improper.26 Review is therefore denied.

2. Deletion of Permit Condition I.D.18

In its response to comments on the draft permit,27 the Region agreed to delete permit Condition I.D.18 but has failed to do so. The Region has acknowledged this oversight and has agreed to delete the provision. Region's Response at 10. Accordingly, on remand, the Region is ordered to delete this provision.

IV. CONCLUSION

The permits for the North and South Plants are remanded and the Region is directed to reopen the permit proceedings for the limited purposes mentioned above.28 Appeal of the remand decision will not be required to exhaust administrative remedies under 40 C.F.R. § 124.19(f)(1)(iii). For the reasons set forth above, review is granted with regard to the due process issue raised in the North Plant petition for review. Pursuant to Section 124.19(c), the Region is directed to give public notice of this grant of review in accordance with Section

26 In comment #3 on the draft permit for the South Plant, GMC requested a permit term of 20 years. As the Region pointed out, however, 40 C.F.R. §270.50(a) states that "permits shall be effective for a fixed term not to exceed 10 years." (emphasis added). Region's Response at 2.

27 Response to Comments at 3.

28 Although 40 C.F.R. § 124.19 contemplates that additional briefing typically will be submitted upon a grant of a petition for review, a direct remand without additional submissions is appropriate where, as here, it does not appear as though further briefs on appeal would shed light on the issues addressed on remand. See, e.g., In re: Chemical Waste Management, Inc., RCRA Appeal No. 87-12, at 5 (Adm'r, May 27, 1988).

DIVISION, ET AL.

124.10. The public notice should set out the briefing schedule noted above and it should state that any interested person may file an amicus brief. The notice should be sent out within two weeks of this order to ensure that interested parties will have sufficient time to prepare and submit amicus briefs by December 9, 1992. On the other issues raised by GMC, review is denied for the reasons set forth above.

IN THE MATTER OF GENERAL ELECTRIC COMPANY

RCRA Appeal No. 91-7

REMAND ORDER

Decided November 6, 1992

Syllabus

On March 13, 1992, the Environmental Appeals Board granted review of a petition filed by General Electric Company challenging the corrective action portion of a permit issued by EPA Region I under the Resource Conservation and Recovery Act. In its petition, GE raises issues relating to: (1) coordination between the Region and State agencies that are also regulating the GE facility; (2) the absence of any review mechanism in the permit that would allow GE to challenge Regional revisions of GE's interim submissions; (3) the Region's authority to impose certain corrective action requirements in areas beyond the boundaries of the facility; (4) the need for certain interim measures; (5) the need for certain RFI requirements; (6) certain deadlines in the permit; and (7) the inclusion in the HSWA portion of the permit of "general conditions" drawn from the "boilerplate" requirements of 40 CFR §270.30.

Held: The Board concludes that: (1) the coordination agreements between the Region and Massachusetts and between the Region and Connecticut satisfy the Agency's strong policy of promoting cooperation between EPA and State agencies; (2) the Region did not exceed its statutory authority to regulate off-site contamination under RCRA § 3004(v) because the language of the permit restricts its application to offsite contamination that migrated from GE's facility; (3) one of the interim measures being challenged is reasonable and need not be altered, while two of the interim measures being challenged are being remanded for further consideration by the Region; (4) the RFI requirements being challenged by the Region are reasonable and need not be altered; (5) the deadlines in the permit need not be changed because, in the absence of evidence that the Region has abused its discretion, the Board will normally defer to the Region's judgment as to how much time a permittee will need to perform a particular task; (6) Section 270.30, which prescribes certain "boilerplate" provisions that must be included in all RCRA permits, neither requires nor authorizes the Region to include such requirements in the HSWA portion of a permit; if the Region wants to include such a provision in the HSWA portion of the permit, it must find authority for it under 40 CFR § 264.101, the corrective action rule, and it must tailor the provision if necessary to reflect its intended application to corrective action activities. The Board is reserving judgment on the absense of a review mechanism for Regional revisions of interim submissions.

Before Environmental Appeals Judges Nancy B. Firestone, Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Reich:

On March 13, 1992, the Environmental Appeals Board granted review of a petition filed by General Electric Company challenging the corrective action portion of a permit issued by EPA Region I under the Hazardous and Solid Waste Amendments ("HSWA”) to the Resource Conservation and Recovery Act of 1976 ("RCRA"). The permit, which was issued February 8, 1991, is for GE's manufacturing facility in Pittsfield, Massachusetts.1 At the request of the Agency's Judicial Officer, the Region submitted a response to the petition.2 GE also submitted a reply brief, and both the Region and GE submitted supplementary briefs in response to the Board's grant of review in this case. For the reasons set forth below, we are remanding certain issues raised by GE for reconsideration by the Region, and we are dismissing others.

I. BACKGROUND

GE's Pittsfield facility, which encompasses 250 acres, is adjacent to the Housatonic River. Unkamet Brook flows through the facility and empties into the Housatonic River. The property slopes towards the Housatonic River and includes portions of the river's and Unkamet Brook's 100-year floodplains. Regionally, the direction of groundwater flow is primarily toward the river with local variations. GE has owned the property since 1903. The facility is divided into three major production areas: the Transformer Division; the Ordnance Division; and the Plastics Division. At the facility, GE has manufactured or is still manufacturing electrical transformers, capacitors, regulators, synthetic resins, molding compounds, missileguidance systems, and other ordnance-related systems. From 1932 to 1977, GE used polychlorinated biphenyls ("PCBs") in the operation of its transformer plant to make pyranol, an insulating oil. Along with PCBs, other hazardous wastes were generated at the facility and disposed of in a variety of ways on and off-site. Petition for Review, Exhibit C, EPA Fact Sheet, at 3.

1 The non-HSWA portion of the permit was issued by the Commonwealth of Massachusetts, an authorized state under RCRA § 3006(b), 42 U.S.C. § 6926(b).

2 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished, and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992).

The areas covered by the Region's HSWA permit are also subject to regulation by the Massachusetts Department of Environmental Protection ("MDEP") under a detailed State regulatory scheme set forth in the Massachusetts "Superfund” law (Mass. Gen. L. Chapter 21E) and the Massachusetts Contingency Plan (MCP), 310 Code of Mass. Regs. (CMR) 40.001 et seq. Like the RCRA corrective-action process, that State regulatory scheme sets forth a phased process requiring investigations of the sites, studies of remedial options, implementation of remedial actions, and the performance of short-term measures in the interim, as necessary. Pursuant to those State authorities, GE and the MDEP have executed two Consent Orders requiring detailed investigations, remedial-action studies, and shortterm measures for the sites involved here, including both the GE Facility and the Housatonic River, except for the portion of the river in Connecticut. With respect to that portion of the river, GE has entered into a Cooperative Agreement with the Connecticut Department of Environmental Protection requiring GE to undertake an investigative program.

On March 13, 1992, the Environmental Appeals Board granted review of the petitions for review filed by GE and Massachusetts, and oral argument was scheduled on certain issues involving Federal/ State coordination. However, when the parties settled the most significant issues scheduled for oral argument, the Board canceled the oral argument.

II. DISCUSSION

Once the Board has granted review under 40 CFR § 124.19(a), it will overturn a Regional Administrator's permit decision if the Board concludes that: (1) there is an error of fact or law in the Regional Administrator's decision; (2) for important policy reasons, the Regional Administrator should have reached a different result; or (3) the Regional Administrator abused his or her discretion. On review, the burden is on the petitioner to show that the Regional Administrator's decision should be overturned.

In its petition, GE raises issues relating to: (1) coordination between the Region and Massachusetts; (2) the absence of any review mechanism in the permit that would allow GE to challenge Regional revisions of GE's interim submissions; (3) the Region's authority to impose certain corrective action requirements in areas beyond the boundaries of the facility; (4) the need for certain interim measures;

3 Massachusetts has since withdrawn its petition for review.