In its reply brief in UIC Appeal No. 86-13, BSC relies on 40 CFR § 264.1(d), which states that the Part 264 RCRA standards apply to UIC permittees "only to the extent they are required by [40 CFR § 144.14]." Because Section 144.14 does not mention the RCRA corrective action requirements, BSC argues that these requirements cannot be imposed through a UIC permit. BSC has identified an apparent error in the rules. Despite the limitation set forth in § 264.1(d), § 270.60(b)(3) expressly requires the owner or operator of a hazardous waste injection well to comply with the RCRA corrective action requirements to qualify for a RCRA permit-by-rule. 18 The apparent conflict must be resolved in favor of requiring compliance for two reasons. First, RCRA § 3004(u) unequivocally requires all RCRA permits issued after November 8, 1984, (whether by formal application or by rule) to impose corrective action requirements under that section. Any conflict between this statutory command and the regulations (40 CFR §§ 144.14 and 264.1(d)) must be resolved in favor of the statute. Second, as a practical matter, BSC's resolution of the regulatory conflict in favor of noncompliance would leave it without any authorization under RCRA "only to the extent they are required by [40 CFR § 144.14]." In turn, § 144.14 applies only to well injection of hazardous waste "accompanied by a manifest." BSC contends that § 144.14 is inapplicable because BSC is not required to manifest the waste injected into its wells. Region V correctly responds that the contested provisions are authorized by §§ 144.52(a)(9) and (b)(1) of the UIC regulations, which state that UIC permits shall include "on a case-by-case basis such additional conditions as are necessary to prevent the migration of fluids into underground sources of drinking water" and "to provide for and assure compliance with all applicable requirements of the SDWA and Parts 144, 145, 146 and 124 [of the UIC regulations.]" These provisions provide sufficient legal authority for imposing the conditions at issue. § 144.14 and 264.1(d) were promulgated to streamline the regulation of wells under both the RCRA and UIC programs. They do not diminish the obligation and authority of permit writers under Section 144.52 to ensure, through additional conditions, that UIC wells do not contaminate underground sources of drinking water or otherwise contravene the requirements of the SDWA and its implementing regulations. 18 As noted above, 40 CFR § 270.60(b)(3) conditions eligibility for a RCRA permitby-rule on compliance with 40 CFR § 264.101, which incorporates the RCRA corrective action requirements into the rules. The Agency promulgated §270.60(b)(3) after § 264.1(d). Compare 50 Fed. Reg. 28,752 (July 15, 1985) with 45 Fed. Reg. 33,221 (May 19, 1980). Section 270.60(b)(3) therefore represents the most recent expression of the Agency's position on the requirements for a RCRA permit-by-rule. IN THE MATTER OF WESTINGHOUSE ELECTRIC CORPORATION RCRA Appeal No. 88-31 ORDER DENYING REVIEW Decided February 17, 1989 Before the Administrator, U.S. Environmental Protection Agency Opinion by William K. Reilly, Administrator: By petition dated November 3, 1988, Concerned Residents of the Yough (CRY) seek review under 40 CFR § 124.19 of a permit issued by EPA Region III to Westinghouse Electric Corporation. The permit is a research, development, and demonstration (RD&D) permit issued under Section 3005(g) of the Resource Conservation and Recovery Act, as amended (RCRA), 42 U.S.C.A. §6925(g). It authorizes Westinghouse to conduct process and equipment development for four hazardous waste treatment technologies at its Waltz Mill research complex near Madison, Pennsylvania. On January 4, 1989, Region III filed its response to the petition along with relevant portions of the administrative record (Region Response), as requested by EPA's Chief Judicial Officer. The treatment units at issue pyrolyze hazardous waste by using a thermal plasma field. Destruction and removal efficiency greatly exceeds conventional combustion processes, thereby significantly reducing potentially harmful products of incomplete combustion. Three of the four units are mobile and designed to travel from site to site with little maintenance. The permit is for testing only, and there are no current plans to establish a large-scale, commercial treatment operation at the facility. Under the rules governing this proceeding, there is no appeal as of right from the Region's permit decision. See 40 CFR § 124.19. Review is discretionary, and under longstanding Agency policy a Regional permit determination ordinarily will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. When the Agency issued Section 124.19, it made clear that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level ***" 45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating that review is warranted is therefore on the petitioner. CRY raises fourteen separate issues in its petition, which can be briefly summarized as concerning: the site's location and previous contaminant releases in the area (issues 1, 2); sampling and monitoring under the permit (issue 3); potential releases to air and water (issues 4, 6, 7, 8, 9, 10, 13); waste transportation and emergency procedures (issues 5, 6); waste disposal (issue 6); the need for additional treatment technologies (issue 11); public reporting requirements (issue 12); and whether the permit protects human health and the environment (issues 9, 14). The Region's response to the petition and the record as a whole are replete with findings that the permit will protect human health and the environment, particularly in light of the scale and type of tests at issue.2 In my view, the Region has sufficiently addressed each of CRY'S concerns, and the petition fails to show that the Region's permit decision is clearly erroneous or otherwise warrants review. The permit complies with all statutory and regulatory requirements. To expedite issuance of RD&D permits, RCRA § 3005(g) allows for waivers of most permit application and issuance requirements set forth in the general RCRA regulations, but Region III granted no such waivers here. Indeed, in several respects Region III has gone beyond the regulations to impose additional, environmentally protective conditions. RCRA §3005(g) reflects a strong congressional policy to encourage the development of new treatment technologies and processes where human health and the environment will be protected. Several of CRY'S contentions cannot be reconciled with this statutory mandate. For example, CRY implies that recycling and waste reduction should be encouraged instead of new treatment technologies. While 1 See. e.g., In re Hytek Finishes Co., RCRA Appeal No. 88-45, at 2 (January 17, 1989); In re Highway 36 Land Dev. Co., RCRA Appeal No. 87-5, at 2 (September 2, 1987); In re Resource Technology Services, Inc., RCRA Appeal No. 83–1, at 2 (September 27, 1983). 2 See, e.g., Region Response at 2-6, 8; Fact Sheet at p.14 §G, p.15 §§H.2, H.3, H.5; Summary Report, Response to Public Comment on the Draft Permit at 7. the Agency believes that these activities deserve the highest priority, they will not completely obviate the need for environmentally protective treatment, storage, and disposal.3 Indeed, RCRA § 3005(g) plainly reflects a determination by the Congress that source reduction and recycling should be supplemented by innovative treatment processes. CRY's allegation that there is no current need for additional incinerators, even if true, would not justify cessation of research into more environmentally protective treatment methods like the pyrolytic processes at issue here. CRY's proposal to use unattainable standards such as zero risk, if adopted, would preclude the issuance of RD&D permits altogether. Its suggestion that prior unrelated exposures be investigated would significantly delay the issuance of RD&D permits, and conceivably increase the overall risk to human health and the environment by extending reliance on less protective disposal meth ods. Other allegations in the petition are simply mistaken. For instance, although CRY contends that the tests will be subject only to random sampling (Petition at 2), in fact waste sampling will be conducted according to approved sampling and analysis matrices. Region Response at 2. Still other arguments in the Petition are irrelevant to this proceeding, such as whether the Waltz Mill facility will comply with its NPDES permit under the Clean Water Act. CRY cites no record evidence of existing violations of this permit, and the Region represents that the permittee is currently in compliance. Region Response at 3. Any wastewater from tests conducted under the RD&D permit will either be treated off-site or pretreated prior to being sent to the Waltz Mill treatment complex in accordance with its NPDES permit. Id. Allegations that the permittee might violate its NPDES permit do not constitute sufficient grounds to deny this RCRA permit. I must observe that EPA has an affirmative obligation to enforce compliance with the NPDES permit, and that, if the Agency fails to do so, the petitioners in this appeal may initiate a citizen suit under §505 of the Clean Water Act for any NPDES violation. In short, CRY has not shown that Region III's permit determination warrants review. For the foregoing reasons, as well as those set forth in the Region's Response, the petition for review is denied. So ordered. 3 See Proposed Pollution Prevention Policy Statement, 54 Fed. Reg. 3845 (January 26, 1989). |