IN THE MATTER OF GELMAN SCIENCE, INC. UIC Permit Appeal No. 86-14 ORDER DENYING REVIEW Decided November 6, 1987 Before the Administrator, U.S. Environmental Protection Agency Opinion by Lee M. Thomas, Administrator: Fifteen petitions 1 were filed requesting that I review EPA Region V's decision to issue an underground injection control (UIC) permit to Gelman Science, Inc. (Gelman) for operation of an underground injection well in Washtenaw County, Michigan.2 For the reasons set forth below, the petitions for review are denied. The Safe Drinking Water Act (SDWA) and applicable regulations do not provide a right to obtain review of UIC permit determinations. Rather, the "power to review should be sparingly exercised [and] * * * most permit conditions should be finally determined at the Regional level ***,* 49 Fed. Reg. 33,412 (May 19, 1980). The regulations specify the substantive grounds for review and establish a deadline for filing requests for review. It is the Agency's clear intent that a petition shall be granted only if the petitioner is in strict compliance with regulatory requirements. 1In alphabetical order the petitions were filed by: James Bever, Marilynn Dickerson, Mary Dorst, Brian Ewart, Phyllis and Ralph Firestone, Thomas Gomez, Ann Hunt (Citizens for Alternatives to Chemical Contamination), Lisa Kiser, J.L. Klinger, James Kuhn, Senator Carl Levin, Margaret Reeves, James C. Schneider, Jennifer Skwiertz (TOCSIN), and David Stead (Ecology Center of Ann Arbor). 2 Gelman constructed the injection well in 1981 and operated it under a permit issued by the state of Michigan until June 25, 1984, when EPA took over the UIC program for Michigan. See 40 CFR § 147.1151. Gelman continues operation of the well under EPA's administration of the program, which authorizes owners or operators of existing Class I wells, with federal permit applications pending, to continue injection activities until EPA issues or denies the permit. 40 CFR § 144.21. Region V issued a final permit determination for Gelman's Class I industrial well on September 30, 1986, and that decision is the subject of this appeal. Pursuant to 40 CFR § 124.19(a), “any person who filed comments on the draft permit or participated in the public hearing may petition the Administrator to review any condition of the permit decision." 3 Review of the administrative record shows that petitioners Ann Hunt (Citizens for Alternatives to Chemical Contamination), James C. Schneider, Phyllis and Ralph Firestone, Thomas Gomez, Senator Carl Levin, James Kuhn, and J.L. Klinger did not file comments or participate in the public hearing and therefore lack standing to appeal the permit determination to the Administrator. Section 124.19(a) also requires that a petition include a statement of the specific reasons supporting review, including a demonstration that any issues being raised were raised during the comment period. The petition filed by Jennifer Skwiertz and the Residents of Scio Township consists of several dozen pages of citizen signatures appended to a document captioned: "We The Undersigned, Hereby Request That The E.P.A. Conduct An Administrative Review and Revoke The Underground Injection Control Permit for Gelman Science, Inc." The document asserts in very general terms that EPA has not adequately addressed a variety of matters; however, it does not provide any support for its assertions or a statement identifying issues that were raised during the comment period. Regardless of how many people sign the petition, it fails to meet the specificity requirements of § 124.19(a) and therefore is dismissed. Two additional petitions are dismissed as untimely. The regulations provide that unless a later date is prescribed by the Regional Administrator, petitioners have thirty days from the date the final permit determination is issued under 40 CFR § 124.15 to request review of the permit. 40 CFR § 124.19(a). This thirty-day period begins on the date of service of notice and is computed in accordance with 40 CFR § 124.20. In this case the Director of the Water Division for Region V4 gave petitioners 30 days from the date of receipt in which to postmark an appeal. The final permit determination was served by mail on October 24, 1986. Petitions filed by David F. Stead (Ecology Center of Ann Arbor), postmarked November 29, 1986,5 and Margaret Reeves, postmarked December 17, 1986, failed to meet the filing deadline. 3 All references to the Code of Federal Regulations (CFR) are to the 1986 edition. 4 The Region V Regional Administrator delegated the authority to issue UIC permit determinations to the Director of the Water Division. 5 David Stead states in his petition that he received the notice on October 27, 1986. Calculating the thirty days from this date results in dismissal of the petition Continued Turning to the remaining petitions, i.e., those that meet the standing and timeliness requirements, petitioners claim that the following conclusions reached by the Region are erroneous: that Gelman's well should be classified as nonhazardous; that Gelman's well has integrity; that the geological structure underlying the well is adequate to prevent the migration of fluids into an underground source of drinking water (USDW); that ground water monitoring is not required; that Gelman submitted an adequate characterization of the waste stream; and that Gelman's past performance is not relevant to issuance of a UIC permit. Under applicable rules, petitions for review should not be granted unless the Region's permit determination is clearly erroneous or involves an exercise of discretion or policy that is important and should be reviewed as a discretionary matter. 40 CFR § 124.19(a). The burden of demonstrating that a permit should be reviewed is on those requesting review.6 Based on the petitions for review, Region V's responses, and the record on appeal, I conclude that petitioners have not met this burden. For the most part, petitioners' arguments fail because they merely amount to a disagreement with the Region's judgment on various matters. The UIC regulations give the Region considerable discretion in determining how a particular requirement is to be met.7 The fact that petitioners would reach a different conclusion based on the information in the record is not grounds for review. Petitioners must show either an abuse of discretion or a clear error of law or fact in the Region's determinations, and this they failed to do. Each issue will be discussed in turn. as untimely. I note that the petitions submitted by Thomas Gomez, James Kuhn, and J. L. Klinger are also untimely. 6 Petitioners assert that EPA shifted the burden of proof on the safety of the injection well to the public. Petitioners are mistaken. The applicant for a UIC permit has the burden of showing that the injection activity will not allow the movement of fluid containing any contaminant into a USDW, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR Part 124 or may otherwise adversely affect human health. 40 CFR § 144.12. Region V determined that Gelman met this burden. On appeal to the Administrator, however, petitioners have the burden of showing that review should be granted, not that the well is unsafe. 7 Many of the UIC requirements are stated as general performance standards, thus affording the permitting authority considerable discretion in determining how a particular requirement will be met. This was done so that the permitting authority would have the flexibility needed to take into account the varying geologic, hydrological, or historical conditions in each case. 48 Fed. Reg. 40,100 (Sept. 2, 1983). CLASSIFICATION OF THE WELL The foremost contention expressed by the petitioners is that the Region should have classified the well as hazardous rather than industrial, because Gelman's waste stream contains 1,4 dioxane, a chemical, petitioners argue, that EPA has placed in carcinogen category group b2 (probable human carcinogen). Furthermore, petitioners contend that Gelman is injecting dioxane-contaminated groundwater into its well. As will be explained below, I do not find that Region V committed a clear error of law or fact in classifying Gelman's deep well as an industrial well. Under UIC regulations, a well such as Gelman's is a Class I well 8 and is considered hazardous if the owner or operator is injecting "hazardous" waste, as defined in 40 CFR § 261.3,9 into the well. 40 CFR §§ 144.6(a) and 144.3. Region V classified Gelman's well as industrial based on its determination that the injection fluid, which consists of wastes generated from three membrane manufacturing lines, is not hazardous under § 261.3. Assuming for the sake of argument that EPA placed 1,4 dioxane in carcinogen category group b2,10 that fact alone would not make it a "hazardous" waste. To be hazardous under §261.3, a waste must exhibit one of four characteristics identified in 40 CFR Part 261 Subpart C, or be specifically named in a list promulgated under Subpart D. The four hazardous characteristics in Subpart C are ignitability, corrosivity, reactivity, and EP toxicity. Carcinogenicity, mutagenicity, and teratogenicity are not included as hazardous characteristics because test protocols for measuring these characteristics are insufficiently developed, according to EPA, or too complex and too highly dependent on the use of skilled personnel to be workable on a wide-scale basis. 45 Fed. Reg. 33,105 (May 19, 1980). EPA left it to the listing mechanism in Subpart D to capture wastes exhibiting these properties. 11 Id. 8 Section 144.6(a) defines Class I wells as those wells used for injecting hazardous or industrial wastes at least one-quarter of a mile beneath the lowermost USDW. 9 Section 261.3 is the definition of hazardous waste used under the Resource Conservation and Recovery Act (RCRA). See 42 U.S.C. §6921. By being cross-referenced in the UIC regulations, it also serves as the definition of hazardous waste for purposes of the Safe Drinking Water Act, 42 U.S.C. § 1448(a)(2). 10 There is no evidence in the record to support this statement. 11 In 1984 Congress amended RCRA to require that EPA list or develop a characteristic that would identify as hazardous waste, those solid wastes with high levels of known toxicants, such as carcinogens, mutagens, and teratogens. Hazardous and Continued Three substances contained in Gelman's waste stream are listed in Subpart D at § 261.33(f)—acetone (U002), 1,4 dioxane (U108), and tetrahydrofuran (U213)-however, Gelman's waste is itself excluded from $261.33's listing of hazardous waste. Section 261.33 regulates "discarded commercial chemical products or manufacturing chemical intermediates" such as acetone (U002), 1,4 dioxane (U108), or tetrahydrofuran (U213), but it specifically excludes these substances if they are present in a manufacturing process waste. Comment to § 261.33(d) defines a "commercial chemical product or manufacturing chemical intermediate" as: [A] chemical substance which is manufactured or for- In other words, EPA intended to exclude those wastes which contain the listed chemical constituents but are not the product themselves. 45 Fed. Reg. 33,115 (Nov. 25, 1981); see O'Leary v. Moyer's Landfill, 523 F. Supp. 656 (E.D. Pa. 1981) (Court could not conclude that the landfill was a hazardous waste site because Plaintiff failed to show that the toxic chemicals in the leachate were materials disposed of in their commercial form, rather than materials which were the residue of other waste). Based on the information submitted by Gelman, the Region determined that the three listed chemicals were present in the injection fluid as manufacturing process waste, 12 and thus not covered by $261.33.13 Therefore, Gelman's waste is not listed as a hazardous waste in Subpart D. Solid Waste Amendments of 1984, § 202, 42 U.S.C. §6921(b)(1986). However, EPA has not yet promulgated regulations implementing this directive. 12 The waste is produced by leaching each membrane in water to remove the solvents using during production. Additional wastes are also generated by support operations related to membrane productions such as air scrubbers and air humidifiers. Transcript at 4. 13 Acetone is also listed in Subpart D under §261.31 as hazardous because of its characteristic of ignitability. Section 261.3(a)(2) provides that a mixture of a solid waste and a hazardous waste which is listed in Subpart D solely because it exhibits one or more of the characteristics of hazardous waste identified in Subpart C, becomes nonhazardous if the resulting mixture no longer exhibits the characteristic for which it was listed. The Region determined that acetone is diluted in the waste stream so that it loses its characteristic of ignitability and thus it is nonhazardous. |