Third, as the Regions press forward to meet various permitting deadlines imposed by RCRA, their resources are being seriously taxed, and they should be given sufficient flexibility in devising appropriate corrective action provisions. In short, Hoechst Celanese has failed to show that the Region's permit determination in this regard is based on clear legal or factual error or otherwise warrants review.8 Issue 3: The permit definition of "contamination" is based on background levels. Hoechst Celanese argues (Petition at 26-29) that this term is inconsistent with § 264.101(a) of the rules, which requires corrective action only "as necessary to protect human health and the environment." The permit, however, does not use the term “contamination" or background levels as a trigger for corrective action. Instead, the RFI Report is to describe contamination at the facility, descriptions that will then be used by the Region to decide whether corrective action is necessary under the relevant statutory and regulatory standards. It is perfectly consistent with the statute to require a permittee to identify contamination based on background levels, leaving it to the Region then to specify the releases that require cleanup to protect human health and the environment.9 Issues 4-8: The listing of the portable storage tanks as SWMUS to be considered in the RFI plan (issue 4) is based on the permittee's own statements regarding releases. See Region Response at 6–7. As noted above, the permit requires the RFI plan to identify only those actions "necessary" to address any releases, not necessarily a fullscale RFI as the permittee contends. Region IV has made clear its willingness to accept an RFI plan tailored in light of the RFA. The issue regarding the definition of "SWMU" (issue 5) was not suffiRegion IV considered the comments made by Hoechst Celanese on this issue and adequately responded to them. 8 Hoechst Celanese further contends that the permit violates EPA policy based on the following language from a 1986 guidance document: In most cases, the conditions developed by the Regulatory Agency Petition at 20 (quoting RCRA Facility Investigation Guidance (Oct. 1986)). The Region has made clear its willingness to accept an RFI plan developed in light of the RFA, and nothing in the permit precludes this result. 9 Hoechst Celanese's reference to the definition of "decontaminate” in an unrelated portion of the rules (Petition at 28-29) is simply irrelevant to the meaning and propriety of the term "contamination" as defined in the permit. ciently raised during the public comment period and thus is not cognizable on appeal. See 40 CFR §§ 124.13 and .19.10 Some issues raised by Hoechst Celanese do not reflect any substantive dispute between itself and the Region, e.g., whether NPDES discharges are excluded from coverage (issue 6), and whether RFIs are required for each SWMU (issue 7). The Region agrees with the permittee on these issues (Region Response at 6-7), and the permit need not be revised to reflect these mutual understandings. Hoechst Celanese's unsupported assertion regarding the compliance schedule for the Final RFI report is insufficient to show that the schedule is unduly strict (issue 8). Id. at 8. Issue 9: Region IV was also correct in defining the term "hazardous constituents" (Permit Condition I.G.2) by reference to the constituents listed in Appendix VIII to 40 CFR Part 261. For regulated units like the Chemical Storage Lagoon subject to §§ 264.91-.100, Appendix VIII was the list in effect prior to permit issuance (see 40 CFR §§ 264.98(h)(2), 264.99(f)) and was thus properly incorporated into the permit. See 40 CFR §270.32(c). Corrective action for nonregulated units is governed by RCRA § 3004(u), which requires corrective action for "releases of hazardous waste or constituents." The Agency interprets the term "hazardous constituent" to mean those listed in Appendix VIII. See 50 Fed. Reg. at 28,713. In appropriate cases, however, the Region should narrow the scope of monitoring where detection of certain constituents is technically infeasible or where there is no likelihood of certain constituents being present in view of the types of waste that have been placed in the SWMU 10 In any event, the permit definition of "SWMU" is not inconsistent with the preamble to Section 264.101 as the permittee suggests. The language in the preamble quoted by Hoechst Celanese merely describes some of the units that should be included as SWMUS. It does not purport to provide an all-inclusive definition of that term. See 50 Fed. Reg. 28,712 (July 15, 1985). Moreover, a permit definition standing alone imposes no regulatory burden; it must be viewed in the context of the entire permit. Here, the particular corrective action requirements are more limited than Hoechst Celanese suggests. Assessment plans, for example, are required for a subsequently discovered SWMU only if it "is known or suspected to have releases of hazardous waste [or] constituents to the environment" Permit Condition II.B.2. A similar limitation appears regarding proposed schedules of implementation and completion (id.) and facility investigation plans. Permit Condition II.C.2. To be sure, EPA's corrective action authority under RCRA §3004(u) extends only to "releases of hazardous waste or constituents." This does not preclude the Agency, however, from requiring a permittee to identify and evaluate all SWMUS as a first step in determining the extent to which corrective action is required. See 52 Fed. Reg. 45,799 (Dec. 1, 1987) (owner/operator must identify and provide information for all SWMUs as part of Part B application) (to be codified at 270.14(d). at issue. The permit here allows for these adjustments in the corrective action program at the discretion of the Region by requiring the RFI plan to specify only those actions "necessary" to characterize the nature and extent of any releases. See Permit Condition II.C.1; see also Permit Conditions II.E.1-5. Issue 10: Finally, the permit requires that laboratory methods for monitoring be conducted in accordance with either of two guidance documents: SW-846 (Test Methods for Evaluating Solid Waste: Physical/Chemical Methods) or EPA-600/4-79-020 (Methods for Chemical Analyses of Water and Wastes). See Permit Condition I.D.9.a. Hoechst Celanese objects to this condition based on statements by the Agency regarding analytical problems and uncertainties associated with SW846. Petition at 36-37. Region IV responds that Hoechst Celanese should submit a petition under § 260.21 authorizing the use of alternative testing techniques. I agree with Hoechst Celanese that this permit term warrants further consideration. As the permittee points out, the Agency has recognized certain deficiencies in SW-846 and made clear that the specific analytical methods set forth in that document are not mandatory for groundwater monitoring under Part 264. See 52 Fed. Reg. 25,945 (July 9, 1987) (SW-846 not mandatory for monitoring of Appendix IX constituents); 51 Fed. Reg. 26,633 (July 24, 1986) (SW846 not mandatory for groundwater monitoring of Appendix VIII constituents). Even with respect to hazardous waste identification, the regulations refer to SW-846 as mere "guidance," not as an inflexible regulatory requirement. See 40 CFR Part 261, Appendix II (¶1); see also Order Denying Motions for Reconsideration and for Stay of Effective Date of Final Order, In re F&K Plating Co., RCRA (3008) Appeal No. 86-1A, at 2-3 (CJO, Nov. 24, 1987). The Region has failed to explain why compliance with SW-846 should be made mandatory here. Section 260.21, to which Region IV refers, simply authorizes petitions for regulatory amendments to add testing and analytic methods equivalent to those required by the regulations; it cannot be used to justify the unexplained imposition of non-mandatory methods. The Region might well have valid reasons to require use of SW846, but if so an explanation is necessary. SW-846 has been and remains the general RCRA analytical methods manual (52 Fed. Reg. at 25,945), and a permit may require that SW-846 be used as a primary reference. The Region's response here, however, fails to reconcile the permit as written with prior EPA assertions that use of SW-846 is not mandatory in all contexts. CONCLUSION The Petition is granted to the extent it challenges Permit Condition I.D.9.a, and Region IV is directed to reconsider this condition in a manner consistent with this opinion. This condition will remain stayed until formally reconsidered, and the Regional Administrator shall decide which additional conditions, if any, are non-severable and thus also subject to the stay under 40 CFR § 124.16(a)(2). In all other respects, the petition is denied for the reasons set forth above and in the Region's response to the petition. The Region shall give public notice of this decision under 40 CFR § 124.19(c). Due to the limited nature of the remand, appeal of the remand decision will not be required to exhaust administrative remedies under 40 CFR § 124.19(f) (1) (iii). So ordered. IN THE MATTER OF KENNETH H. MANNING NPDES Appeal No. 87-19 FINAL ORDER Decided March 3, 1989 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: This case concerns the denial of an application for an NPDES permit filed by Kenneth H. Manning, who is the petitioner on appeal. EPA Region X denied the application on the grounds that petitioner had not submitted required reports under the discharge monitoring reporting (DMR) provisions of a previous permit. Failure, or, in this instance, refusal to submit required reports is explicitly recognized in the regulations as grounds for denying a permit application. 40 CFR § 122.6(c). Petitioner was given a clear warning of his reporting delinquency by letter, dated February 26, 1987, and was advised of the consequences: Failure to submit this information is a violation of Petitioner refused to heed the warning, and the Region issued a proposed denial of his permit application.1 Petitioner filed objections to the proposal on the stated grounds that the reporting requirement violates his Constitutional privilege against self-incrimination. The Region rejected his claim of unconstitutionality and made its proposal 'Letter, dated April 6, 1987, from Harold E. Geren, Chief, Water Permits and Compliance Branch, EPA Region X, to Kenneth Manning. |