Section 146.14(a)(7)(iii) requires the Region to consider "an analysis of the chemical, physical, radiological and biological characteristics of injection fluids." Gelman submitted an analysis of its waste stream that included the pH, chemical oxygen demand, specific gravity, total suspended solids, and a GC. The Region considered this information adequate.

Petitioners claim that a gas chromatograph/mass spectrograph (GC/MS) should have been run instead of a GC because a GC does not identify all the components in Gelman's waste stream. Under the UIC regulations, the GC, which Gelman ran according to EPAapproved test procedures at 40 CFR Part 136, Appendix A-methods 601 and 602, is an acceptable means of identifying the components (including hazardous components) of a waste stream. See 40 CFR §§ 144.52(a)(5) and 136.3, Table I. Thus, assuming petitioners' claim is true that a GC/MS will identify more components than a GC, that fact does not make a GC inappropriate. Again, the petitioners' argument amounts to a disagreement with the Region's judgment and, as such, does not provide grounds for review. 21

GELMAN'S PAST PERFORMANCE

Finally, petitioners argue that the Region erred in issuing a permit to Gelman because Gelman has shown through past actions that it cannot be trusted. Petitioners base this argument on allegations that Gelman failed to obtain a required NPDES permit and failed to report a waste spillage promptly. These allegations are not supported by evidence in the record. Furthermore, it is not clear why such matters would be relevant to these proceedings. Section 144.40 addresses the type of misbehavior that is relevant to issuance of a UIC permit. According to § 144.40(a)(2), failure to disclose fully all relevant facts in an application, or misrepresentation to the Re

21 Petitioners also argue that the Region cannot issue a permit until EPA develops routine protocols for monitoring the organic chemicals that are major components of Gelman's waste stream (tetrahydrofuran, dimethylformamide, N-methylpyrolidone, and polyacrylamine). Although petitioners' argument is not clear, it appears that petitioners are referring to the fact that certain chemicals in Gelman's waste stream are not listed in Table I of 40 CFR § 136.3 or Appendix III of 40 CFR Part 261. (Table I and Appendix III describe the methods which a permittee can use to monitor the injection fluid. § 144.52(a)(5).) Petitioners cite no statutory or regulatory requirement to support their position that EPA must promulgate "protocols" for the components of Gelman's waste stream before it can issue a UIC permit. Nor do I find any such requirement. The regulations give the Region authority to determine whether an analytical method selected for monitoring is appropriate, and in this instance the Region explained that the methods used for similar organics, identified in 40 CFR § 136.3, Table I, are adequate for analyzing Gelman's waste stream.

gion of any relevant facts at any time, would provide grounds for denial of the permit application. The record contains no evidence of Gelman doing this.

Petitioners' concerns about Gelman should be somewhat alleviated by the fact that the permit contains numerous operating, monitoring, and reporting requirements to ensure that Gelman operates the well in a manner that will not endanger a USDW or otherwise adversely affect the health of persons.22 Any noncompliance with these terms would constitute a violation of the Safe Drinking Water Act and is grounds for an enforcement action. Gelman's Permit at Part I.E.1.

CONCLUSION

For all the foregoing reasons, it is my conclusion that review of Region V's permit determination is not warranted; therefore, the petitions for review are denied.23

So ordered.

22 For instance, the permit requires continuous monitoring of the annulus pressure and injection pressure (Attachment E at page 4), an annual demonstration that there is no significant leak in the casing, tubing or packer, and a demonstration of mechanical integrity in accordance with § 146.8(c) every five years (Part I.G.2). Under the permit, Gelman must monitor and report on the injection pressure and flow rate (Part I.D). Gelman must also properly operate and maintain all facilities and systems of treatment and control which it uses to achieve compliance with the permit (Part I.E.6).

23 All other arguments raised by petitioners and not discussed in this decision have been thoroughly considered and rejected as not providing grounds for review.

IN THE MATTER OF MILLIPORE CORPORATION, INC.

RCRA (3008) Appeal No. 86-7

FINAL DECISION

Decided December 2, 1987

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

Complainant, U.S. Environmental Protection Agency, Region II, appeals a Decision on Remand issued by Administrative Law Judge Edward Finch (ALJ) on April 30, 1987, in which he assessed Millipore Corporation (Millipore) $2,500 for violation of the Resource Conservation and Recovery Act (RCRA) and its implementing regulations. The Region had proposed a $17,500 penalty for the violation and claims that the ALJ erred in reducing the penalty. For the reasons stated below, I find that the Decision on Remand fails to clearly explain why the penalty was reduced to $2,500. Rather than remand the case for clarification, I assess an appropriate penalty for Millipore's violation.1

BACKGROUND

Millipore, owner and operator of a manufacturing facility in Cidra, Puerto Rico, with interim authorization to store hazardous waste, decided to relocate an on-site hazardous waste storage area. On December 15, 1983, it submitted to the Puerto Rico Environmental Quality Board (EQB) a plan for closing the old hazardous waste storage area. The plan stated that closure would begin on February 15, 1984 (60 days), but Millipore did not actually start transferring wastes from the storage area until May 7, 1984 (140 days), completing closure on June 25, 1984. Region II charged

The Administrator and his delegatee have the authority to assess a penalty and may increase or decrease the penalty recommended in the Initial Decision. 40 CFR § 22.31; see In the Matter of A.Y. McDonald Industries, Inc., RCRA (3008) Appeal No. 86–2 (Order Denying Motion for Reconsideration, Nov. 9, 1987).

Millipore with failure to submit a closure plan to EQB 180 days before it expected to begin closing the storage area, in violation of Rule 805(A)(3)(a) of Puerto Rico's Regulation for the Control of Hazardous and Nonhazardous Solid Waste.2 Based on its classification of the violation under EPA's RCRA Civil Penalty Policy (Penalty Policy), the Region proposed that Millipore be assessed a $17,500 penalty.3

In a July 30, 1986 Initial Decision, the ALJ found Millipore liable for the violation, but assessed only a $2,500 penalty. I remanded the Initial Decision to the ALJ for a clarification of the reasons for this decrease from the amount proposed by the Region. See In the Matter of Millipore Corporation, Inc., Docket No. II–RCRA85-0303 (Order on Remand, Nov. 3, 1986). On April 30, 1987, the ALJ issued a Decision on Remand explaining that he reduced the penalty because EQB failed to cooperate "according to the Rules," referring to EQB's violation of Rule 805(A)(3)(a). Decision on Remand at 3. After a closure plan is submitted, Rule 805(A)(3)(a) requires EQB to approve or disapprove the plan within 90 days and in this case EQB did not respond to Millipore's plan for 210 days. The ALJ surmised that Millipore's defective closure plan could have been cured if EQB had responded within the required 90 days; so, he concluded that the penalty should be reduced.

DISCUSSION

On appeal, Region II argues that the ALJ erred because he failed to clearly explain the reasons for decreasing the penalty to $2,500. I agree.

If, in exercising his discretion to establish a penalty, the ALJ decides to assess a penalty different from the amount recommended by the Region, EPA's regulations require him to set forth the specific reasons for the increase or decrease. 40 CFR § 22.27(b) (1986). This requirement helps ensure that the ALJ's reasons for the penalty assessment can be properly reviewed on appeal. Judge Finch ex

2 Rule 805(A)(3)(a) is modeled after EPA's closure regulations at 40 CFR § 265.112(d) (1985).

3 The Region classified the violation as constituting a "major" potential for harm and a "moderate" extent of deviation, which results in a penalty range of $15,000 to $19,999 under the matrix in the Penalty Policy. The Region selected the midpoint of $17,500 as the appropriate gravity-based penalty and made no adjustments to this amount.

4 See SEC v. Chenery Corp., 332 U.S. 194 (1947) (basis of the agency action must be set forth with such clarity as to be understandable); Matlovich v. Secretary

Continued

plains that he reduced the recommended penalty because of EQB's violation, but he fails to articulate his reasoning for setting the penalty at $2,500, other than to state that "some penalty" is necessary to encourage compliance with Rule 805(A)(3)(a).

The ALJ could have explained the penalty assessment by reference to the guidance contained in the Penalty Policy, which provides an analytical model useful for expressing the rationale behind a penalty assessment. In the Matter of Sandoz, Inc., RCRA (3008) Appeal No. 85-7, at 8 (Feb. 28, 1986). By incorporating or distinguishing the reasoning in the Policy, the rationale for the decision would have been spread out on the record in a clear manner. Id. Here, I cannot tell whether or to what extent the ALJ followed the Penalty Policy.5 The Region's brief manifests the same confusion with the Decision, for, at one point, the Region argues that the ALJ completely disregarded the Policy and assessed a penalty arbitrarily; at another, it contends the ALJ misapplied the Policy. The Decision contains statements that could support either position.

The ALJ states that the "real reason" behind his conclusion is the lack of a "meaningful exchange" between EQB and Millipore. If this is so, how does the lack of a "meaningful exchange" translate into a $2,500 penalty? The Decision doesn't explain. The Decision's failure to set forth the rationale for the penalty assessment with sufficient clarity makes review impossible. Rather than remand the case a second time, I conclude that the best course of action is for me to assess the penalty.6

PENALTY ASSESSMENT

In calculating the appropriate penalty for Millipore's violation, I applied the guidance in the Penalty Policy and arrive at a penalty of $3,900. This assessment is less than the amount proposed by the Region because, as discussed below, my calculation of the gravitybased penalty differs from the Region's and because I conclude that

of the Air Force, 591 F.2d 852 (D.C. Cir. 1978) (requiring agency to provide a reasoned explanation for its decision enables the court to give proper review, helps avoid arbitrary action, and informs the aggrieved party of the grounds for the action so it can plan a course of action).

5 For example, Judge Finch says he assessed the $2,500 penalty "basically without regard to the matrix in the Penalty Policy." Decision on Remand, at 6 (emphasis added).

6 Judge Finch is now retired and the parties have recycled their arguments three times, apparently having nothing new to say. Accordingly, I think it best to resolve this case in the most expeditious manner.