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Neither the MOA nor the Plan addresses the Sandbar District. Although the Keeper's eligibility determination for the Sandbar District was not made until after issuance of the permit and the decision on the hearing requests, it nevertheless appears that the provisional status of this permit means that EPA is required to conduct a section 106 review of the Sandbar District to the extent necessary to determine whether any alterations in the permit's terms are necessary before it becomes final. It is my understanding that a section 106 review of the potential impacts of the permit action on the Sandbar District is currently underway. Therefore, I am remanding this proceeding to the Region to provide the Pueblo with an opportunity for an evidentiary hearing on the issue of the adequacy of the section 106 review of the Sandbar District. In the event that the Region's section 106 review is not completed prior to the commencement of the scheduled evidentiary hearing, the Region should make appropriate arrangements for addition of this issue to the hearing, and if the hearing is completed, for its reopening.

ISSUE #2: REOPENER CLAUSE

The Pueblo argues that New Mexico's designation of section 2105 of the Rio Grande as "secondary contact recreation" is erroneous. The Pueblo describes several ceremonial uses of this section as

6 See 36 CFR §800.11(b) (requiring a section 106 review where eligible properties are discovered during the implementation of an undertaking); Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271 (3rd Cir. 1983)(HUD retained ongoing relationship with project sufficient to make it subject to requirements of NHPA notwithstanding that building scheduled for demolition was not listed in National Register for Historic Places until well after date of original project approval).

Under the NHPA the Region is required to provide the Pueblo with the opportunity to participate in the review process, consistent with 36 CFR §800.1(cX2). The level of participation that the Pueblo is entitled to depends on whether the Sandbar District is "Indian Land." Section 800.1(cX2Xiii) provides:

When an undertaking will affect Indian lands, the Agency Official
shall invite the governing body of the responsible tribe to be a
consulting party and to concur in any agreement.

** When

an undertaking may affect properties of historic value to an Indian
tribe on non-Indian lands, the consulting parties shall afford such
tribe the opportunity to participate as interested persons.

There is not sufficient information in the record before me to determine whether the Sandbar District is "Indian Lands" for the purposes of the NHPA.

grounds for redesignating it for primary human contact. The Region correctly responds that the proper forum for challenges to state water quality standards is in state proceedings, not on appeal to the Administrator. However, the Region has requested the State of New Mexico to review its water quality standards to determine if actual uses are being adequately protected. Both the RA, in his ruling on the requests for an evidentiary hearing, and the Region, in its response to the petition for review, state that if, as a result of the water quality standard review, New Mexico changes the designated use for the relevant portion of the Rio Grande from secondary to primary human contact, the permit will be modified to reflect the change. However, it is not clear how such a modification will occur if the standard is changed to primary use after these permit proceedings are completed. Thus, I am remanding this issue to the Region to consider whether the permit should contain a reopener clause that would allow permit modification if New Mexico changes the designated use for section 2-105 from secondary to primary contact.8

CONCLUSION

The Pueblo has not met its burden of demonstrating that the RA's partial denial of an evidentiary hearing request was clearly erroneous (legally or factually) or otherwise warrants review by the Administrator. Nevertheless, in view of recent developments in this matter, I am remanding this proceeding to the Region to provide

7 As a general rule EPA cannot modify existing permits to require compliance with newly adopted or revised water quality standards unless the permit applicant requests such a modification. See, e.g. 40 CFR § 122.62(a)3XiXC).

Although the regulations only require a permit to contain standards "in effect at the time of initial permit issuance," it may be appropriate in this case-because of the alleged threat to the Pueblo's religious and ceremonial water uses for the Agency to take affirmative steps to require compliance with a water quality standard revision that occurs after permit issuance. As the Agency has stated:

The Agency is the representative of the public interest and is
not "an umpire blandly calling balls and strikes for adversaries
appearing before it; the right of the public must receive active
and affirmative protection" at the hands of the Agency. [Scenic
Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d
Cir. 1965) cert. denied 384 U.S. 941 (1966)] The courts have made
it clear that the Agency must take affirmative steps to obtain
the information necessary to sound decisions under the statutes
it administers, even at the cost of delay * *.

In re Public Service Company of New Hampshire, et al. (Seabrook Station, Units 1 and 2) 10 ERC 1257, 1263 (1977).

the Pueblo with an opportunity for an evidentiary hearing on the two issues identified in this order.9

So ordered.

The Pueblo has filed three motions to supplement the administrative record. See Motion to Supplement Administrative Record (July 20, 1988); Pueblo of Sandia's Second Motion to Supplement Administrative Record (August 31, 1988); Pueblo of Sandia's Third Motion to Supplement Administrative Record (November 21, 1988). The Pueblo has not shown that these supplemental materials are appropriate for consideration in the matter on appeal before the Administrator-i.e., whether the RA erred in partially denying the Pueblo's request for an evidentiary hearing. Thus, the three motions to supplement the record are denied. The Pueblo has also filed a February 17, 1989 Motion for Reconsideration of the denial of the Pueblo's Petition to Consolidate. This motion is denied.

IN THE MATTER OF BROWN WOOD PRESERVING

COMPANY

RCRA (3008) Appeal No. 86-4

FINAL DECISION

Decided May 3, 1989

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCullum, Chief Judicial Officer:

The rules that implement Subtitle C of the Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C.A. §§ 6921– 6939b (1983 & West Supp. 1988), define "tank" as a unit "designed to contain an accumulation of hazardous waste which is constructed primarily of non-earthen materials (e.g. wood, concrete, steel, plastic) which provide structural support." 40 CFR § 260.10.1 The first question presented is whether Respondent's former sand bed filter-a subsurface unit which consisted of four wooden sides and a clay floor-was a tank.

The rules also provide that the Subtitle C regulatory program applies to K001 waste, a listed hazardous waste described as "Bottom sediment sludge" from the treatment of certain wood preserving wastewaters. 40 CFR § 261.32.2 The second major issue raised by this appeal is whether this listing applies to certain waste in Brown Wood's holding pond and spray irrigation field.

These issues have been vigorously contested here and elsewhere. Their ultimate resolution will have significant ramifications for the

1 The relevant definitions and listings in effect at the time of the alleged violations in this case have remained largely unchanged. Citations to the CFR are thus to the 1988 edition unless otherwise noted. The trial transcript is cited as "TR" and Complainant's and Respondent's exhibits are cited as "CX" and "RX" respectively.

2 Under the rules, a waste is deemed hazardous and thus subject to Subtitle C regulation if it exhibits any of four characteristics set forth in Sections 261.20– 24 (ignitability, corrosivity, reactivity, or EP toxicity), or if it is listed under Sections 261.30-33.

wood preserving industry.3 The first issue has resulted in a split among administrative law judges (ALJs) regarding the proper interpretation of "tank."4 The second has been the subject of some disagreement within the Agency5 and was recently addressed by a tentative determination in a related rulemaking proceeding. 53 Fed. Reg. 53330 (Dec. 30, 1988).6 It was hoped that a decision in that parallel proceeding would clarify the case at bar. For the reasons set forth below, however, it has not. Nor does it appear from the tentative decision that further clarification will be forthcoming in any final determination to follow. Accordingly, this protracted proceeding is now ready for decision.7

I. BACKGROUND

The facts and procedural history in this case are described in the May 30, 1986 Initial Decision (pp. 2-16). To the extent they are consistent with today's decision, those findings are adopted and incorporated herein. The salient facts may be briefly summarized as follows.

Respondent Brown Wood Preserving Company, Inc. operates a creosote wood treatment plant in Brownville, Alabama. Initial Decision at 4. Brown Wood's wastewater treatment system includes a series of pits and sumps that collect the process water. The wastewater passes through several settling tanks where the creosote settles to the bottom and is recycled. The wastewater then enters two quick-mixer tanks in which flocculation takes place. At the time of the alleged violations, the water and resulting floc were then

3TR 193-95; Brief of the American Wood Preservers Institute (AWPI), at 34 (July 29, 1986). AWPI was granted leave to participate as an amicus party during the post-trial briefing phase of this case. Merck, Sharp & Dohme, Quimica de Puerto Rico, Inc., was granted leave to file an amicus brief on appeal.

4 Compare In re Brown Wood Preserving Co., RCRA-84-16-R (ALJ Yost, March 30, 1986) with In re Koppers Co., RCRA-III-167 (ALJ Nissen, October 14, 1988). 5 See. e.g., TR 191-93, 209, 213-17; Court Ex. 1; RX 30, 36, 44.

6 AWPI initiated this parallel proceeding by submitting a "Petition for Reconsideration of Decision to Classify Wood Preserving Spray Irrigation Fields as Hazardous Waste Land Treatment Units and for a Clear Definition of K001 Sludge." 53 Fed. Reg. at 53331. The Agency has treated this submission as a rulemaking petition. Id.

7I stress at the outset that today's decision is limited to the factual record in this case. It is not necessarily in conflict with the December 1988 tentative determination, which is based on the docket in that rulemaking. I am, however, forwarding a copy of this decision to EPA's Office of Solid Waste for consideration in the parallel proceeding.

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