IN THE MATTER OF HOECHST CELANESE RCRA Appeal No. 87-13 REMAND ORDER Decided February 28, 1989 Before the Administrator, U.S. Environmental Protection Agency Opinion by William K. Reilly, Administrator: Hoechst Celanese Corporation has petitioned for review of the federal portion of a permit issued in May 1987 by EPA Region IV under the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C.A. §§ 6901-6991i. The permit authorizes Hoechst Celanese to operate an onsite hazardous waste storage and treatment facility at its plant in Greer, South Carolina. The federal portion imposes corrective action requirements under the Hazardous and Solid Waste Amendments of 1984 (HSWA), Pub. L. No. 98616, 98 Stat. 3221. The balance of the permit was issued by South Carolina, an authorized state under RCRA §3006. As requested by EPA's Chief Judicial Officer, the Region submitted a response to the petition, together with relevant portions of the administrative record (Region Response). Under the rules governing this proceeding, the Region's permit decision is not subject to automatic review. See 40 CFR § 124.19.1 Ordinarily, a RCRA permit determination 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 § 124.19, it stated 1 All citations to the Code of Federal Regulations are to the 1987 edition unless otherwise noted. 2 See In re Highway 36 Land Dev. Co., RCRA Appeal No. 87-5, at 2 (Sept. 2, 1987); In re Bryant Waste Management, Inc., RCRA Appeal No. 85-2, at 2 (June Continued 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. In its Petition, Hoechst Celanese argues that: (1) the Region improperly treated a closed unit, the Chemical Storage Lagoon, as a unit subject to corrective action under the HSWA portion of the facility permit rather than through a separate post-closure permit; (2) the permit's corrective action provisions are vague, indefinite, and overbroad; (3) the permit definition of "contamination" is unduly broad; (4) the investigation requirements for the portable waste oil storage tanks contradict prior Agency conclusions; (5) the permit definition of "solid waste management unit" (SWMU) is inconsistent with Agency rules and policies; (6) the permit erroneously fails to exclude NPDES discharges from coverage; (7) the permit improperly requires separate RCRA Facility Investigations (RFIs) for each SWMU; (8) the thirty-day period for submitting the Final RFI Report is unreasonably short; (9) the permit fails to allow for monitoring of the Appendix IX list of constituents as opposed to the Appendix VIII constituents; and (10) the permit improperly requires the use of analytic procedures specified in guidance document SW-846. For the reasons set forth below and in the Region Response, Hoechst Celanese has failed to meet its burden under 40 CFR § 124.19 except for the final issue. Issue 1: In 1985 Hoechst Celanese submitted a post-closure permit application for its Chemical Storage Lagoon, but that application is not currently being processed. Instead, Region IV has included the Lagoon as a unit subject to corrective action under the HSWA portion of the facility permit. Hoechst Celanese requests that corrective action for the Lagoon be accomplished through a separate postclosure permit for that unit rather than through the facility permit. Petition at 8. The permittee is concerned that the time and effort already expended in applying for a post-closure permit will be wasted if corrective action for the Lagoon is carried out under the facility permit. Petition at 18-19. The Region has stated, however, that any investigations or other work performed to date in connection with the 1985 application may be relied on and incorporated into the RFI 23, 1986); In re Earth Indus. Waste Management, Inc., RCRA Appeal No. 84–3(a), at 2 (March 12, 1985). plan required by the facility permit. See EPA Response to Comments on the Draft Permit, at 2 (May 22, 1987) (Attachment 6 to Region Response). The Region should take full advantage of the permittee's prior efforts to avoid unnecessary repetition of work and to minimize the permittee's paperwork obligations. Under the facility permit, Hoechst Celanese is required to prepare an RFI plan specifying actions "necessary" to determine the nature and extent of any releases. Permit Condition II.C.1. If, as Hoechst Celanese contends, only those actions identified in its post-closure permit application are necessary for the Lagoon, no substantial additional costs should be incurred. The Region's decision to include the Lagoon in the HSWA portion of the facility permit is consistent with the applicable regulatory requirements. When Region IV issued the permit in May 1987, the rules in effect did not require post-closure permits for units (like the Lagoon) that closed prior to January 26, 1983. See 40 CFR § 270.1(c)(1987). This provision has since been amended to require post-closure permits for units (like the Lagoon) that received waste after July 26, 1982. See 40 CFR § 270.1(c) (1988); 52 Fed. Reg. 45,798 (December 1, 1987). The Region, however, properly applied the rules as they existed prior to permit issuance. See 40 CFR §270.32(c). Hoechst Celanese misstates the Agency's position on the effect of RCRA § 3005(i). Petition at 10-15. Corrective action for releases from a regulated unit to the uppermost aquifer must be conducted under 40 CFR §§ 264.91-.100. See RCRA §3005(i); 40 CFR § 264.90(a)(2); 50 Fed. Reg. 28,714-15 (July 15, 1985). Other releases are governed by RCRA §3004(u) and 40 CFR § 264.101. Id. The permit at issue makes clear, however, that the proper regulatory requirements will be applied to the Lagoon.3 Inclusion of these requirements in the facility permit here contravenes neither RCRA § 3005(i) nor the Agency's preference for using a permit mechanism to implement corrective action.4 3 See Permit Condition II.E.5 (requiring permittee to use 40 CFR §§ 264.91-.100 to establish corrective action for the Lagoon). 4 Hoechst also attacks a January 26, 1987 letter from Region IV regarding this issue as an unpublished rule that violates the Administrative Procedure Act (APA). Petition at 15-17. That letter, however, did not modify the Agency's rules, but merely set forth the plain meaning of the rules in force, and thus was not subject to the publication requirements of the APA. Although Hoechst Celanese suggests that the Region's approach will delay corrective action at the Lagoon, nothing in the permit prohibits the permittee from complying with §§ 264.91-.100 while simultaneously going forward with corrective action under § 264.101 for the other units. If corrective action at the Lagoon is unreasonably and unnecessarily delayed pending investigation of the other units, Region IV should con Continued Issue 2: Permit Condition II.C.1 requires Hoechst Celanese to prepare an RFI plan for six specified SWMUS. Hoechst Celanese asserts that Region IV failed to use the RCRA Facility Assessment (RFA) to tailor the scope of the RFI, but instead issued a generic, boilerplate permit that requires reexamination of all possible releases to all possible pathways. Petition at 20-26, 30-32. Although the permit identifies the SWMUS of concern, it does not specify the potential releases or media to be investigated during the RFI. Instead, the permittee must prepare an RFI plan delineating these details and then revise the plan as directed by the Region. The issue raised by Hoechst Celanese involves competing concerns, namely the Agency's need to ensure that the corrective action process remains flexible and expeditious versus the permittee's interest in having its obligations identified as early and narrowly as possible. By necessity, corrective action is often a phased process because, at the time of permit issuance, there might not be sufficient information to identify the particular corrective action measures needed. See 50 Fed. Reg. 28,714 (July 15, 1985). If this is the case, the permit should establish a time frame under which the needed information will be obtained. Id. As the process advances-from RFA to RFI plan to RFI report to a final decision on the specific corrective action measures required-newly acquired data is used to refine each subsequent phase. Once all necessary information is acquired and appropriate corrective action identified, the permit is modified accordingly. Id. The Region recognizes that the RFA should be used to tailor the RFI plan. Region Response at 4 and Attachment 6. The basic disagreement between the parties is procedural. Under the permit as written, future disputes as to the appropriate scope of the RFI would be resolved by the Region. The permittee, on the other hand, wants the Region to use the RFA now to establish more specific permit conditions regarding the RFI plan, conditions which would be subject to administrative and judicial review. Hoechst Celanese invites the Agency to use this permit appeal as a vehicle for establishing nationwide policy on corrective action procedures. Petition at 5. I decline the invitation. EPA is currently drafting comprehensive corrective action regulations. The complex issues involved are best resolved in that rulemaking forum. Until these rules are promulgated, regional decisions in this area are entitled sider modifying the permit to include an accelerated schedule of compliance for the Lagoon. to deference for several reasons. First, even where (as here) an RFA has been completed, there still may be serious concerns about the quality of the RFA information or analysis. The Regional Administrator is in the best position to determine the extent to which information from the RFA should be incorporated into the permit.5 Second, Hoechst Celanese's due process arguments regarding the opportunity for review are unavailing. The Petition fails to show that due process requires administrative review for disputes regarding the scope of the RFI, and at all times Hoechst Celanese will be free to pursue whatever judicial review procedures are available.6 The permit requires that any specific corrective action measures be added to the permit through formal modification procedures (see Permit Condition II.G), which will present an opportunity for review at that time.7 5 The Agency has recognized that in certain situations a permit should be issued before an RFA is completed, thereby initially resulting in a permit largely devoid of details as to the corrective action that will ultimately be required. See Memorandum from J. Porter to Hazardous Waste Division Directors, Region I-X, Implementation of RCRA Facility Assessments, OSWER Policy Directive No. §9502.00.4 (August 21, 1986). "The permittee's reliance on In re U.S. Nameplate Co., RCRA (3008) Appeal No. 85-3 (CJO, March 31, 1986), is unavailing. There the record failed to show that a source-specific waste listing in the rules "wastewater treatment sludges from electroplating sources”—was sufficient to put generators on notice that etching waste was included. Id. at 6-7. Although a background document to the listing defined electroplating to include etching, the Chief Judicial Officer held that passing references to that document in the Federal Register were insufficient to cure the listing deficiency. Id. at 13. Here, however, there is no uncertainty as to the permittee's current obligation: to prepare an RFI plan. Unlike the respondent in U.S. Nameplate, at no point will Hoechst Celanese be subject to enforcement action based on vague or unclear obligations. As the corrective action process proceeds, the details of each subsequent requirement will come to light. 7 Hoechst Celanese argues that the permit violates the APA because it was issued "without any explanation of how those [corrective action] provisions were derived * *." Petition at 25 (emphasis in original) (citing Burlington Truck Lines v. United States, 371 U.S. 156, 167 (1962)). The basis of this contention is not entirely clear. The permit requires Hoechst Celanese to prepare an RFI plan, conduct the RFI, and to prepare other plans and reports as necessary to ascertain what corrective action measures are necessary. This basic investigative framework is consistent with prescribed Agency policy for all RCRA facilities subject to EPA's corrective action program. See, e.g., RCRA Corrective Action Plan (Interim Final, June 1988); National RCRA Corrective Action Strategy, 51 Fed. Reg. 37,608 (October 23, 1986) (request for comments). Moreover, unlike the motor carrier application at issue in Burlington— which required an adjudication—a RCRA permit application is not subject to an APA adjudicative hearing. Once the Agency has reached a reasonable and legally proper permit decision based on the administrative record, it need not provide detailed findings and conclusions, but instead must reply to all significant comments on the draft permit or permit application as required by 40 CFR § 124.17. The record shows that Continued |