Memorandum to the Region's Response,5 asserts that it raised the objections to TCLP testing which it now attempts to raise on appeal during the comment period not only through its written comments but also "in several meetings and conference calls with EPA prior to the end of the public comment period * * *." PCII Reply at 2. During those meetings and conference calls, according to PCII, “PCII expressly questioned the regulatory basis for PCII to obtain TCLP testing of its incoming waste streams (regardless of the party responsible for such testing), and the appropriateness of the TCLP testing requirement for PCII's particular operations." Id. Region V has requested leave to file a document entitled "Supplemental Response of the United States Environmental Protection Agency to Petitioner's Request for Review of Condition in RCRA Final Permit" ("Supplemental Response"). Leave to file this document is hereby granted. In the Supplemental Response, the Region denies that it participated in any meetings with PCII during the comment period. It acknowledges that the permit writer spoke with PCII on at least one occasion but denies that it was in regard to the subject of PCII's Petition. Supplemental Response at 2. There is nothing in the administrative record relating to the telephone calls or alleged meetings between PCII and Region V during the comment period. We have only PCII's unsubstantiated, and contested, allegations that the issues were the same as in the Petition. This is not sufficient. To assure an adequate administrative record on appeal, PCII should have made sure that its written comments raised all of the issues of concern. To ascertain in contested cases whether the issue raised on appeal was properly preserved for review, we will look only to the written comments which the petitioner filed on the draft permit. It is uncontested that some of PCII's comments on the draft permit related to the TCLP testing procedure. The more difficult question is whether the particular objections to the testing requirement as raised on appeal were raised in PCII's comments. We find that they were not. PCII's comments on the requirement for TCLP testing were focused on two particular aspects of the testing requirement. The first was that PCII not be required to conduct the TCLP testing but that TCLP testing be conducted by the generator of the waste in 5 Reply Memorandum of Pollution Control Industries of Indiana in Support of its Petition for Review of Condition in RCRA Final Permit (“PCII Reply”). stead. The requirements for general waste analysis by the owner or operator of a treatment, storage, or disposal facility provide for the possibility of generator-supplied data.7 The Region, in its Response to Comments, agreed to add the following clarifying language to certain requirements of the permit: "Analytical data that is not submitted by the Generator must be obtained by PCII in accordance with 329 IAC 3-41-4 and 40 CFR 264.13."8 Thus, rather than directly shifting the testing burden to the generator as PCII would have preferred, the Region made clear that PCII as the permittee had the burden of analyzing the waste except to the extent that the generator had already adequately done so. This language accurately reflects the structure of 40 CFR § 264.13(a)(2), which allows for generator-supplied data but puts the burden for waste analysis on the facility owner or operator if generator-supplied data are not provided.9 The Petition for Review contains a number of arguments against TCLP testing, none of which were raised in PCII's comments on the draft permit. In fact, PCII's comments on the draft permit con 6 Comments numbered 6, 10, 14, 16, 19, and 20. The particular language suggested by PCII to be added as a footnote to the TCLP testing requirement reads: "Will be obtained by the Generator or by an outside laboratory retained by the Generator in accordance with 329 LAC 3-41-4, CFR 264.13, and 262.20.” However, comments 6, 10, 14, and 16 refer back to comment number 2. In that comment, PCII seemed to recognize that it is ultimately responsible for providing the waste analysis data since it suggested adding to the narrative on the waste analysis plan the following language: In accordance with 329 IAC 3-41-4, CFR 264.13, CFR 262.20, required waste stream data which is not provided by the Generator will be obtained by PCII, by an outside laboratory retained by PCII, or by an outside laboratory retained by the Generator. These provisions seem inconsistent on what obligation PCII would have if the generator does not provide the data but there is no explanation for this seeming inconsistency. 740 CFR § 264.13(a)(2) provides in part: The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part of the information required by paragraph (a)(1) of this section, except as othewise [sic] specified in 40 CFR 268.7 (b) and (c). If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this section. * Response to Comments on the Draft Federal Permit for Pollution Control Industries of Indiana comments and responses number 1, 4, 6, 7, and 8. We recognize that PCII's Petition states that TCLP testing will be required of PCII irrespective of any testing which the generator may have done. PCII indicates that it has confirmed this interpretation of the permit with Region V. However, as we read the permit, TCLP testing would not be required of PCII if a generator provided all of the data which TCLP testing would yield. tained no explanation of the reasons for its suggested changes or arguments supporting why the changes were appropriate. Thus, PCII failed to satisfy its obligation to provide all reasonably available arguments supporting its position during the comment period. Since, as previously noted, it is possible to construe PCII as objecting to the requirement that PCII do TCLP testing under any circumstances, it is necessary for us to determine whether its comments concerning generator testing were intended to convey a wholesale rejection of the appropriateness of TCLP testing by PCII in all circumstances, thus preserving this issue for review. We do not read its comments in that manner. The particular language PCII suggested adding to the permit, quoted in note 6 supra, refers to data being obtained by the generator in accordance with § 264.13.10 This reference can only be to the language about the owner or operator arranging for the generator to supply part of the data required since that it is the only place in that section that the generator is mentioned. The reference in the same quoted language to § 262.20 is simply to the manifesting requirement which applies to the generator when waste is being transported off-site. This relates to the transfer of information about the waste from the generator to the receiving facility. There is no reference in the comments, as there is in the Petition, to 40 CFR § 262.11, the section on hazardous waste analysis by a generator. Therefore, in context, we read PCII's comments as merely expressing a desire to shift the burden for TCLP testing under the permit to the generators rather than challenging whether TCLP testing was appropriate at all.11 Further support for this reading comes from the following language suggested by PCII in its comment number 20 dealing with annual waste stream evaluations: In order to show proper characterization of each 10 See note 7, supra. 11 It is instructive that PCII's comments did not simply suggest deletion of the TCLP requirement, as they have in the Petition. Deletion, rather than shifting the burden, would seem more consistent with an objection to the TCLP testing as not being rationally required for PCII's facility. This language, suggested by PCII, clearly contemplates that TCLP testing would be conducted absent generator certification. This is wholly inconsistent with the outright rejection of TCLP testing PCII now asserts. The other focus of PCII's comments was that the requirement for TCLP testing be contingent on the results of the total metals analysis. If the total metals analysis indicated that the metals content of a waste stream was below certain minima, TCLP testing would not be required.12 The Region, in its Response to Comments, indicated that the TCLP contains provisions that would obviate the need for use of TCLP if a total analysis of the wastes demonstrates that individual analytes are below appropriate regulatory levels for the particular toxicity characteristic waste being analyzed. Because the Region determined that the TCLP procedure itself contained the flexibility PCII requested, it made no change to the permit.13 PCII's comments on the draft permit thus contain no broad challenge to the regulatory basis or appropriateness of TCLP testing as applied to its facility. To the extent that its Petition makes a broader challenge, it contravenes the requirements of 40 CFR §§ 124.13 and 124.19 to have raised this challenge before the close of the comment period on the draft permit. These broader issues were certainly reasonably ascertainable during the comment period and did not arise from changes from the draft to the final permit. To the extent that the Petition reiterates the two specific issues raised during the comment period, we find that the change made to provide for generator-supplied data and the explanation of why no change was required to accommodate a total metals analysis were fully responsive to PCII's concerns. For all of the foregoing reasons, the Petition for Review is denied. So ordered. 12 Comments number 8B and 12B. 13 Response to Comments, comments and responses number 3 and 5. See 40 CFR Part 261, Appendix II, Section 1.2. IN THE MATTER OF PORT OF OAKLAND AND GREAT LAKES DREDGE AND DOCK COMPANY MPRSA Appeal No. 91–1 FINAL DECISION AND ORDER Decided August 5, 1992 Syllabus EPA Region IX brought an enforcement action against the Great Lakes Dredge and Dock Company ("Great Lakes"), seeking a civil penalty of $175,000 for multiple alleged violations of the Marine Protection, Research, and Sanctuaries Act of 1972 ("MPRSA") and a permit issued to the Port of Oakland, California, under that statute. After a lengthy hearing, the presiding officer issued an Initial Decision holding that Great Lakes, as a contractor to the Port, had committed all three alleged violations involving ocean disposal of dredged, unpermitted sediments. However, he reduced the Region's proposed penalty for these violations from $150,000 to $10,000. The presiding officer also held that Great Lakes had violated the terms of the MPRSA permit by dumping materials at a greater distance from the center of the disposal site than the permit allowed ("off-center dumping") on a least three occasions. However, he assessed no penalty for these violations, based on his finding that Great Lakes had made good faith efforts to comply with this requirement. He denied the Region's motion to file a Second Amended Complaint that alleges additional violations for which the Region seeks $40,000 in additional penalties. Region IX argues in its appeal from the Initial Decision that the presiding officer's penalty determination for the dredging and disposal violations is based on numerous erroneous conclusions of fact and law. Most significantly, the Region argues that the presiding officer erred when he made a determination whether the Port's permit should have authorized ocean disposal of all of the Oakland Inner Harbor sediments, and then concluded, based on that determination, that the gravity of Great Lakes' conduct in disposing of unpermitted sediments was "slight." The Region further argues that the presiding officer erred when he failed to assess civil penalties for five alleged instances of off-center dumping. The Region also asks the Board to grant its motion for leave to file the Second Amended Complaint. The Region asks the Board to review the record de novo, and to assess to total penalty of $215,000 for the violations alleged in the First and Second Amended Complaints. Held: A total civil penalty of $125,000 is assessed against Great Lakes for the three counts of disposal of unpermitted sediments ($110,000) and three counts of off-center dumping ($15,000). The Board affirms the presiding officer's determination that other instances of off-center dumping have not been proven, and affirms his denial of the motion for leave to file the Second Amended Complaint. |