the approval of the Director of the Federal Register. * [1 CFR] §51.6(a) requires that the "language incor- The agency has failed to comply with either of the Here, as previously stated, neither the background document nor the statement contained therein that defines electroplating to include chemical etching was published in the Federal Register. However, the Region does claim that the background document was referenced or "noted" in the Federal Register at the time 40 CFR § 261.31 (F006) was originally promulgated. 45 FR 33084, 33112, 33113 (May 19, 1980). In response, U.S. Nameplate claims, and the Region does not dispute, that the only references in 45 FR 33084 et seq. (1980) to the background document are as follows: [A]mong other things, the docket contains back- And at 45 FR 33112 and 33113: Detailed justification for listing each hazardous waste Clearly, these references were insufficient to give U.S. Nameplate "effective enough knowledge so that [it might] easily and certainly ascertain the conditions by which [it was] to be bound." Based upon these imprecise references U.S. Nameplate could not have been expected to know, or even to suspect, that the Agency considered sludge from the etching of stainless steel to be "F006 hazardous waste." 16 16 I observe that although the Region's complaint relied solely on § 261.31 to identify respondent's waste as "hazardous waste," it is not the only regulation under which U.S. Nameplate might have been charged in this instance. In addition to § 261.31, which lists hazardous waste by reference to generic or non-specific sources, e.g., waste from electroplating operations, waste from degreasing operations, etc., the Agency's regulations also define hazardous waste by reference to the characteristics of the waste itself, e.g., corrosivity, ignitability, etc., without regard to the source of the waste. See 40 CFR §§ 261.20-24 (Subpart C) (1984). Therefore, if a waste is ignitable or corrosive, it is a "hazardous waste" without reference to whether it was generated from electroplating sources, etching sources, or from some other source or sources. In this instance the record shows that waste generated from U.S. Nameplate's stainless steel etching operations is both ignitable and corrosive. In its Notification of Hazardous Waste Activity (Exhibit C-19 in the hearing record), U.S. Nameplate identified its waste as ignitable and corrosive. Similarly, in its RCRA permit application (Exhibit C-20 in the hearing record) U.S. Nameplate identified its waste as ignitable and corrosive. Nevertheless, the Region, in its complaint, did not charge U.S. Nameplate under 40 CFR §§ 261.21 & 22 but rather under 40 CFR § 261.31 (F006). In defending against the complaint U.S. Nameplate naturally focused on § 261.31 (F006); also the Presiding Officer's initial decision is based on the $261.31 (F006) charge. To hold U.S. Nameplate liable under §§ 261.21 & 22 would require amending the Region's complaint despite the fact that an initial decision (or judgment) based on the original complaint has already been rendered. While courts have permitted amendment of the complaint after a judgment has been rendered, those cases are distinguishable from the present case. (E.g., Textor v. Bd. of Regents of N. Illinois Univ., 711 F.2d 1387 (7th Cir. 1983) (Court allowed plaintiff to amend her complaint after judgment based upon the finding that defendant would suffer no undue prejudice); Christensson v. Hogdal et al., 199 F.2d 402 (D.C. Circuit 1952) (Court allowed plaintiff to amend complaint after action dismissed, where the amendment served to diminish the scope of relief and did not cause the defendant to suffer prejudice.) The point of these and similar cases, see e.g., Spencer v. Utah Construction Co., 293 F.2d 34 (7th Cir. 1961); Marks v. Prattco, Inc., 607 F.2d 1153, 1156 (5th Cir. 1979), is that courts will allow a complaint to be amended after a judgment or after evidence has been taken if the defendant's defense on the merits would not be prejudiced thereby. See also Rule 15(b) of the Federal Rules of Civil Procedure. Here, the Region's case is based upon its allegation in the complaint that Nameplate's sludge is hazardous waste under § 261.31 (F006). Accordingly, at the evidentiary hearing, U.S. Nameplate should not have been expected to (nor did it) address whether or not its sludge could also be considered hazardous waste under §261.21 & .22. In light of these circumstances, despite the fact that U.S. Nameplate identified its sludge as ignitable and corrosive in Exhibits C-19 and C-20 (seemingly an admission against interest), it never was given the opportunity to expound on these issues. Accordingly, it would be unfair (and certainly unduly prejudicial) to amend the complaint to conform to U.S. Nameplate's seeming admission at this stage of the proceed ORDER For all the foregoing reasons, the charges against U.S. Nameplate cannot be sustained; the initial decision is therefore reversed and the complaint in this matter is dismissed. However, dismissal of the complaint is without prejudice. U.S. Nameplate has not yet implemented a groundwater monitoring program 17 and its lagoon has been leaking for a substantial period of time. Moreover, in a recent letter EPA's Office of Solid Waste stated that U.S. Nameplate's waste contains "significant levels of trichlorethelene [a probable human carcinogen]" which was expected "to leach so as to present a substantial hazard to human health and the environment." (Letter to U.S. Nameplate from EPA's Office of Solid Waste (OSW), dated January 7, 1986, indicating that OSW intended to recommend denial of U.S. Nameplate's delisting petition.) Nothing in this Final Decision prohibits Region VII from taking whatever action in the future which it considers necessary and appropriate as a result of these circumstances. For example, the Region may wish to reinstitute its complaint based upon the allegation that the sludge in U.S. Nameplate's lagoon is ignitable and corrosive, which U.S. Nameplate seemingly has admitted (See Exhibits C-19 and C-20 in the hearing record). Or, the Region may wish to base a future complaint against U.S. Nameplate on 40 CFR § 261.31 (F006) as modified.18 Nothing in this Final Decision would bar Region VII from taking these or any other appropriate actions against U.S. Nameplate which the Region may consider necessary to mitigate the effects of U.S. Nameplate's leaking lagoon or to otherwise protect the public and the environment. So ordered. ings (during this appeal) by basing it on §§ 261.21 & .22 as a substitute for (or in addition to) § 261.31 (F006). 17 No groundwater monitoring program had been implemented at the time of the presiding officer's Initial Decision. Initial Decision, Finding of Fact #11. If one has been implemented since the time of the Initial Decision, I have not been informed. Certainly, if U.S. Nameplate now has an appropriate groundwater monitoring system in place, one would assume that it would have so stated in its appellate brief. 18 See n. 7 supra. IN THE MATTER OF SHELL CHEMICAL COMPANY Appeal Nos. 85-14, 85-15, 85-16 FINAL DECISION Decided April 18, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Louise Doherty Jacobs, Judicial Officer: Shell Chemical Company has appealed to the Administrator Region VI's denial of a hearing on the terms of three recently issued NPDES permits. The Region denied the hearing on grounds that no significant facts were in dispute. In an earlier decision on that appeal, as the Administrator's delegatee, I affirmed part of the Region's finding, and, except for the "100% compliance issue," reversed and remanded the rest, directing that an evidentiary hearing be held on matters where I found Shell had in fact demonstrated significant factual disputes. The "100% compliance" dispute I found to be devoid of factual issues, but "important" as a matter of law and/or policy, and therefore appropriate under our regulations for the Administrator's review. See 40 CFR 124.91(a)(1). At Shell's request, oral argument on "100% compliance" was held in my office, and extensive briefing has been provided. I have now carefully considered the record, the briefing, and the argument presented at hearing, and have concluded that the relief requested by Shell must be denied. Notwithstanding my finding that review by the Administrator was appropriate, I now affirm the Region's denial of Shell's request for an evidentiary hearing on the 100 percent compliance issue. 40 CFR § 124.91(d). Shell's raising of the 100 percent compliance issue is in reality a request to reconsider the existing regulations, e.g., 40 CFR § 122.41(a), and therefore should be raised, if at all, in the context of a rulemaking proceeding. Shell may do so by formally petitioning the Agency pursuant to the Administrative Procedure Act, 5 U.S.C. §553(e), to seek an amendment to or repeal of the existing regulations. Furthermore, based on the record before me, I would recommend against granting any petition to amend the 100 percent compliance requirement as requested by Shell. NATURE OF THE ISSUE The "100% compliance issue" was defined by Shell in its petition for review, as follows: Whether the EPA Region VI policy decision requiring Although both Shell and EPA expressed some of their arguments in legal terms, and suggested that the issue might be disposed of on one of several legal theories, careful review of the arguments and authorities cited requires the conclusion that the case contains no substantial legal dispute. Plaintiff, for example, claimed that case law compels the agency to make provision for deviations from permit norms for random variations in process discharge. But this claim, in addition to being disputable, is moot. Several courts of appeal have held that no excursion provision is required by the Clean Water Act. See, e.g., Weyerhaeuser v. EPA, 590 F.2d 1011 (D.C. Cir. 1978); Corn Refiners Assn. Inc. v. Costle, 594 F.2d 1223 (8th Cir. 1979); API v. EPA, 540 F.2d 1023 (10th Cir. 1976). When two others found a variance necessary,2 the 1The issue was more narrowly set out by the Agency in its opposition brief as: "Should Shell's NPDES permits be modified to allow less than 100% compliance by Shell with the effluent limitations set forth in the permits?" 2 Marathon Oil v. EPA, 564 F.2d 1253, 1266-74 (9th Cir. 1979); FMC Corp. v. Train, 539 F.2d 973, 985-86 (4th Cir. 1976). |