pumped to a sand bed filter where the floc was filtered out. Id.8 The wastewater seeped down through the sand in the filter to a collection manifold and then flowed to a holding pond. From the holding pond, the water was (and still is) pumped onto a spray irrigation field. Excess water from the field is returned to the holding pond. Id. During the 1970s, the Agency not only approved but encouraged wood preservers to use this treatment system to achieve zero discharge into surface waters under the Clean Water Act, 33 U.S.C.A. §§ 1251-1387 (1986 and West Supp. 1988). Id.; TR 191. The units at issue in this case are the sand bed filter, the holding pond, and the spray irrigation field. On March 31, 1984, EPA Region IV filed a complaint against Brown Wood. According to the Region, Brown Wood was subject to the RCRA requirements governing interim status facilities because its sand bed filter, holding pond, and spray irrigation field all contained K001 waste. The complaint as amended in 1985 alleges that Brown Wood violated the rules regarding financial responsibility, groundwater monitoring, and other requirements for interim status facilities. The Region recommends issuance of a compliance order and imposition of a $24,000 civil penalty. In his Initial Decision, the ALJ held that the sand bed filter was a "tank" as defined in Section 260.10, and was therefore a "wastewater treatment unit" exempt from interim status regulation under Section 265.1(c)(10). Initial Decision at 16-18, 26-27, 36.9 The ALJ also determined that the sand bed filter was a "wastewater treatment plant," and that any waste in the holding pond and spray irrigation field was thus treated effluent from a wastewater treatment plant. Id. at 19-20. Because the definition of "sludge" excludes treated effluent from such a plant, he concluded that any material in these downstream units was outside the listing for K001 sludge and thus free from RCRA regulatory requirements. Id. As an alternative holding, the ALJ concluded that Region IV failed to prove the existence of K001 waste in the holding pond and spray irrigation field. Id. at 20-36. Finally, the ALJ held that even if the sand bed filter were deemed a regulated unit, Brown Wood would be conditionally 8 The sand bed filter at issue no longer exists. In 1984 Brown Wood replaced it with a concrete tank. It is undisputed that the concrete tank is exempt from RCRA regulation. See Initial Decision at 18. 9 Section 265.1(c)(10) renders the interim status requirements in Part 265 inapplicable to wastewater treatment units. An identical exemption from the Part 264 permitting standards is set forth in Section 264.1(g)(6). exempt from RCRA as a small quantity generator. Id. at 37. Accordingly, he dismissed the complaint. On appeal, Region IV argues that the sand bed filter was not a "tank" as defined in Section 260.10 and thus not exempt as a wastewater treatment unit under Section 265.1(c)(10). It also challenges the ALJ's conclusion that the sand bed filter was a "wastewater treatment plant" and that waste in units downstream from the filter was excluded from the definition of "sludge." Although the notice of appeal is limited to these two issues, it is necessary for me to address other issues as well for a full consideration of this case. 10 A. The "Tank" Issue II. DISCUSSION The sand bed filter was a subsurface unit consisting of four wooden sides and a clay floor. Initial Decision at 16. It is undisputed that the filter contained K001 bottom sediment sludge. Id. at 4; TR 198, 233. Brown Wood argues that this unit was exempt from interim status regulation by virtue of Section 265.1(c)(10), which excludes "wastewater treatment units" as defined in Section 260.10. For a device to be a "wastewater treatment unit" under Section 260.10, it must be a "tank," which is defined in that same provision as a stationary device, designed to contain an accumula- 10 Because I disagree with the ALJ on the two issues appealed by the Region, and because Brown Wood relies in part on the conditional exemption for small quantity generators, I must address the regulatory status of the holding pond and spray irrigation field. If the pond and field were unauthorized hazardous waste management units, the small quantity generator exemption would be inapplicable. See 40 CFR § 261.5(g)(3). The regulations contemplate the possibility that the Administrator (or his delegate) will address issues not raised on appeal, even in the absence of sua sponte review under Section 22.30(b). The rules provide that "[i]f the Administrator determines that issues raised [during the course of the proceeding], but not appealed by the parties, should be argued, he shall give counsel for the parties reasonable written notice of such determination to permit preparation of adequate argument.” 40 CFR § 22.30(c). Here, I have not found it necessary to request further argument on such issues. 11 The definition for a "wastewater treatment unit" also requires that the unit be part of a wastewater treatment facility subject to regulation under Sections 307(b) or 402 of the Clean Water Act, and that the unit manage wastewater or wastewater Brown Wood parses the "tank" definition into its individual components and argues that its filter was a tank because it was stationary and was made primarily of nonearthen materials (wood) which provided some measure of structural support. Region IV rejects this view and instead characterizes the unit as a "surface impoundment," defined as a facility or part of a facility which is a natural 40 CFR § 260.10.12 The rules make clear that impoundments and tanks are mutually exclusive regulatory categories subject to different performance standards. Impoundments are covered by Subpart K in 40 CFR Parts 264 (permit standards) and 265 (interim status standards), whereas tanks are subject to Subpart J. The regulatory history of the rules at issue sheds light on the intent (but not necessarily the meaning) of the definitional distinction between tanks and impoundments. Regulatory history: When the RCRA rules were first proposed in 1978, there were three relevant regulatory categories: basins, storage tanks, and impoundments. 43 Fed. Reg. 58996–97 (Dec. 18, 1978). The Agency noted that impoundments pose a serious threat to groundwater because the only barrier to waste movement is the ground (as supplemented by any liner). Id. at 58989-90. Basins, on the other hand, were defined as units "constructed of artificial materials," thereby excluding units with earthen floors like Brown treatment sludge deemed to be hazardous under the rules. See 40 CFR § 260.10 (definition of "wastewater treatment unit"). It is undisputed that Brown Wood's sand bed filter met these additional requirements. 12 A more detailed explanation of a similar position is set forth in an April 15, 1983 memorandum to Region IV from Bruce R. Weddle, then-Acting Director of EPA's State Programs and Resource Recovery Division. The parties disagree as to the weight to be given the Weddle Memorandum in this proceeding and whether it constitutes an unpublished rule in violation of Sections 3 and 4 of the Administrative Procedure Act, 5 U.S.C. §§ 552-53 (1992). Today's decision is not based on the Weddle Memorandum, and it is therefore unnecessary to address the issues regarding its authority raised by the parties. Wood's. 13 Basins pose less of a threat to groundwater than impoundments due to their more reliable construction materials and because they are usually aboveground and thus subject to visual inspection for leaks. Id. When the interim status standards were issued in 1980, the Agency combined basins and storage tanks into a single category, "tank," with the definition that exists today. 45 Fed. Reg. 33200-01 (May 19, 1980). The Agency continued to emphasize the serious risk to groundwater posed by impoundments (id. at 33202), but voiced no similarly strong concern over tanks. In fact, tanks were subject to less stringent requirements than impoundments. 14 The evolution in definitions from "basin" and "storage tank" to "tank" plainly was not intended to include units in which an earthen floor is directly exposed to waste. The history of the exemption for wastewater treatment units likewise shows that it was not intended to apply to units with earthen floors. When the Agency suspended application of performance standards for wastewater treatment units, it noted that they pose distinct hazards which require RCRA regulation. See 45 Fed. Reg. 7607677 (Nov. 17, 1980). But because these units are already subject to regulation under the Clean Water Act, the Agency concluded that sufficient RCRA regulation could be implemented through permitsby-rule (as opposed to individual permits obtained through the formal permit application process). Id. at 76077. EPA made clear that the exemption and related permits-by-rule should be limited to tanks because these units are "designed to contain waste and constructed primarily of non-earthen materials such as concrete or steel." Id. It expressly declined to extend this approach to surface impoundments because they require site-specific and waste-specific regulation that can only be achieved on a case-by case basis through individualized permits. 15 13 See 43 Fed. Reg. at 58996 (Section 250.41(7)). The Agency inadvertently proposed two definitions for "storage tanks," both of which defined these units in relevant part as "manufactured non-portable covered device(s)." See 43 Fed. Reg. at 58976, 58999. This redundancy was eliminated when the rules were issued in 1980. 14 Compare 45 Fed. Reg. at 33239-43 (Subpart F) and id. at 33245-46 (Subpart K) with id. at 33244-45 (Subpart J). 15 As an example, the Agency noted that "in determining whether a surface impoundment needs a liner to prevent releases (leaching) of hazardous wastes into groundwater, the Agency must take into account such site-specific factors as the type and character of the geologic materials underlying the site, the character of the groundwater underlying the site and the compatibility of the liner material with the hazardous waste being treated or stored in the impoundment." 45 Fed. Reg. at 76077. Although the Agency simultaneously proposed rules to carry out its permit-byrule approach (id. at 76080-83), it never finalized these rules. Thus, wastewater treatment units remain exempt from all interim status and permitting requirements. I am convinced the Agency never intended the exemption for wastewater treatment units to extend to units with earthen floors like Brown Wood's. Such units require precisely the kind of sitespecific and waste-specific determinations that are inappropriate for permits-by-rule. The issue before me is whether the Agency properly effected its intent in the regulations as written. 16 This dispute centers on the point at which a hole in the ground ceases to be an impoundment and becomes a tank. Under the rules, there are two main definitional distinctions between tanks and surface impoundments. First, impoundments need only be "designed to hold" (liquid) waste, i.e., to enclose or accommodate the waste. Tanks, on the other hand, must be "designed to contain" hazardous waste, a term of art which generally means to prevent all waste migration. 17 This difference does not sufficiently distinguish tanks from impoundments, however, because the latter can also be designed to prevent waste migration through, for example, a double liner and leachate collection system. See 40 CFR § 264.221. The definitions thus go on to specify that for tanks, containment must be effected 16 As noted by Brown Wood, "regulations cannot be construed to mean what an agency intended but did not adequately express." L. R. Wilson & Sons, Inc. v. Donovan, 685 F.2d 664, 675 (D.C. Cir. 1982). Just as legislative intent without more is not legislation, regulatory intent without more is not regulation, 17 Although "hold" and "contain" are synonymous in certain contexts, the use of different words in a code generally reflects a differentiation of meaning. See, e.g., Tafoya v. U.S. Dep't of Justice, LEAA, 748 F.2d 1389, 1391-92 (10th Cir. 1984). This rule applies with particular force here due to the parallel grammatical construction ("designed to hold" vs "designed to contain") and because the definitions of “tank" and "surface impoundment" are integrally related. The word "hold" as used in the rules suggests general enclosure of waste, or at most an ability to prevent large spillovers and the like, but not to prevent all waste migration. See, e.g., 40 CFR §265.171 (1981) (referring to leaking or defective containers as "holding" wastes); 40 CFR § 264.171 (1988) (same). A "holding pond," for example, is understood to include unlined lagoons that offer no protection against seepage to groundwater. In contrast, "contain" as used in the rules generally denotes an ability to prevent waste migration, particularly to groundwater, See, e.g., 40 CFR § 265.253 (1981); 40 CFR §264.223 (1982). Indeed, the current containment requirements for tanks, which provide for protection against waste release, speak in terms of "secondary containment" (40 CFR §§ 264.193, 265.193) because the "tank" definition requires the unit itself to provide primary containment. A unit need not be leakfree to be considered a tank, but it must at least be designed to contain hazardous waste, i.e., the unit's overall design must give reasonable assurance of preventing waste migration. I need not decide whether Brown Wood's filter was designed to contain hazardous waste because, assuming arguendo that it was, it did not meet the structural support requirement in the "tank" definition (as explained above). |