CSSI first challenges the permit requirement that it conduct in-place hydraulic conductivity testing on the test fill for its soil liners. See petition at 17-22. This requirement to use field (as opposed to lab) testing is based on policy guidance from the Agency's Office of Solid Waste and Emergency Response ("OSWER").2 Although such field testing is not currently required by the rules, 3 the Agency is authorized under the RCRA "omnibus provision" to go beyond the rules and impose any permit condition necessary to protect human health and the environment.4 In my view, the Region has provided sufficient justification for field testing.5 Although CSSI argues that the technical protocol for such testing is not strictly standardized, permit writers need not forgo environmentally protective conditions merely because those conditions entail the reasonable exercise of discretion by the permittee. CSSI raises certain practical concerns regarding field testing, but it has failed to demonstrate clean error in the Region's determination that such testing is preferable to lab testing and necessary here to protect human health and the environment.6

The second issue raised by CSSI concerns its groundwater monitoring network. See Petition at 24-30. The rules provide that where

2 See Technical Guidance Document: Construction Quality Assurance For Hazardous Waste Land Disposal Facilities, at 21-22 (July 1986) (EPA 530-SW-86-031, OSWER Policy Directive No. 9472.003) (Attachment B-I to Region Response) (“CQA Guidance"). This guidance was prepared by OSWER and EPA's Office of Research and Development. It is specifically referenced in the permit conditions at issue.

3 The Agency has proposed to amend its regulations to require such field testing. See 52 Fed. Reg. 20218, 20258-59 (May 29, 1987) (§§ 264.20(b) (3) (iii) (A), 265.20(b) (3) (iii) (A)).

4 See RCRA § 3005(c) (3), 42 U.S.C.A § 6925(c) (3); 40 CFR §270.32 (b) (2). The legislative history to the omnibus provision states that this authority may be exercised where (as here) the Agency intends to impose new requirements to protect human health and the environment but has not yet issued final rules to implement the proposal. See S. Rep. No. 284, 98th Cong., 1st Sess. 31 (1983).

5 See Region Response, Attachment 2 at 3-4; see also CQA Guidance, supra note 2, at 21-22; 52 Fed. Reg. at 20258-59.

If ORD and OSWER change their current position on the desirability of field testing as a result of comments on the proposed rule to require such testing, CSSI may request an appropriate modification of its permit. See Joint Response to Public Comments on [CSSI's] August 14, 1987 Draft RCRA Permit at 40, 45 (March 11, 1988) ("Response to Comments"). Until any such policy change, however, permit writers may require field testing when they deem it necessary to protect human health and the environment. Such determinations under the omnibus provision will generally be reviewed only for clear error.

Region X and DEQ agree with CSSI that field testing should be conducted only for the bottom 36-inch soil liners, not for the soil portion of the top composite liners. The Region represents that the permit will be modified to reflect this understanding. See Region Response, Attachment 2 at 3.

a facility contains more than one regulated unit, the units may be grouped into waste management areas ("WMAS") for purposes of locating monitoring wells. See 40 CFR §264.97(b). In its application, CSSI proposed to consolidate ten units into three WMAS (WMAS 1, 2 & 7). In the final permit, the Region subdivided the three proposed WMAs into eight WMAs, thereby increasing the total number of wells required at the site from 74 to 87.7 CSSI challenges this subdivision of the proposed WMAS, as well as certain conservative modeling parameters used by the Region. It also argues that the record should be reopened to receive additional hydrogeologic data because the Region modified its decisional basis on this issue after the public comment period.8

On the merits, the Region has sufficiently justified the groundwater monitoring network required by the permit, particularly given the absence of detailed hydraulic conductivity data for the three WMAS proposed by CSSI.9 Although the Region's justification for its position changed somewhat during the course of the permit drafting process, 10 such a change standing alone does not require that

7 The permit provides for a groundwater monitoring network of 87 wells, 23 of which are new wells that CSSI must construct after the permit becomes effective. Of the 23 new wells, 13 result from the Region's subdivision of CSSI's proposed WMAS. See [CSSI] Notion to Reopen the Administrative Record, Virnig Aff. at 12 (April 12, 1988).

8 The only relevant change to the draft permit involves Ponds A and B. The draft permit proposed to consolidate Ponds A and B into a single WMA, but the final permit separates these units due to information first considered by the Region and DEQ while preparing their response to comments. See Response to Comments, supra note 6, at 55. CSSI does not challenge the Region's authority to change the draft permit, but objects to the Region's alteration of its decisional basis after the comment period.

9 See Region Response, Attachment 2 at 5-11; Response to Comments, supra note 6, at 53-58. CSSI submitted detailed hydraulic conductivity data for one landfill, L-13, and Region X accepted these data as justifying a relatively large WMA for this unit. CSSI argues that the Region should have assumed that the data for L 13 applied throughout the entire site. I agree with the Region, however, that L 13 is unit in certain key respects and that data regarding this unit are not necessarily applicable to the site as a whole. See Response to Comments, supra note 6, at 5355; Region Response, Attachment 2 at 9-11. Similarly, CSSI has failed to show that the Region's dispersivity values and other modeling parameters are clearly erroneous. See Response to Comments, supra note 6, at 56–58; Region Response at 7-8.

Although it had no obligation to do so, Region X continued to analyze hydrogeologic data submitted by CSSI after the permit was issued. The Region and DEQ are unconvinced that CSSI's additional submissions warrant modification of the groundwater monitoring network specified in the permit. See Regional Response, Attachment 2 at 6, 10.

10 CSSI exaggerates the extent to which the Region's rationale changed. The August 1987 Fact Sheet states that CSSI's proposed WMAS (1) improperly assume a

the record be reopened. Administrative review under Section 124.19 serves as an adequate check to ensure that any change in the decisional basis is not unduly prejudicial, just as it does for a change to the draft permit itself.11 CSSI's appeal, however, fails to convince me that it has suffered any undue prejudice, that an additional comment period is necessary, or that the Region's permit decision otherwise warrants review.12

uniform vertical flow of a release from the units at issue (as opposed to a point source release); (2) are based on unsupported dispersivity values; and (3) might result in a release that goes undetected during the post-closure monitoring period. Fact Sheet at 73-74. It also asserts more generally that subdivision of the proposed WMAS is necessary to "detect contamination in the aquifer at the earliest possible time.” Id. at 74. When the permit was issued in March 1988, the Region rejected the proposed WMAS due to their high horizontal/ vertical conductivity ratios. Response to Comments, supra note 6, at 53-55. Despite this shift in emphasis and more refined analysis, the basic objection remained the same, namely that the proposed WMAS are too large to permit timely detection of a release. There is no evidence that the Region deliberately withheld its true decisional basis in the Fact Sheet or that the Fact Sheet was otherwise fatally deficient, particularly when viewed in the context of the prior exchanges between the parties regarding the site's hydrogeology. See Motion to Reopen at 3-6; Region Response, Attachment 2 at 6-9, Attachment 5 at 6.

11 It is entirely appropriate for a public comment period to result in changes to the Region's decisional basis, the record, or the draft permit itself. The rules expressly address only changes to the draft permit, but such changes frequently involve a change in decisional basis as well. The Region is required only to specify and explain such changes, not to receive additional comment on them. See 40 CFR § 124.17 (a) (1). The Agency has also made clear that changes to the factual record in response to comments need not always result in an additional comment period. See 45 Fed. Reg. 33412 (May 19, 1980). A fortiori, a Region need not receive additional comments on a change to its decisional basis unaccompanied by any significant change to the draft permit or factual record. Accord, International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n.51 (D.C. Cir. 1973) (“A contrary rule would lead to the absurdity that *** the agency can learn from the comments only at the peril of starting a new procedural round of commentary.")

12 CSSI also argues that the permit requires it to drill certain wells through a final closure cover for four landfills in violation of Sections 264.112 (a) (2) and 264.310 of the rules. Petition at 25-26, 29. The Region and DEQ concluded, however, that these wells are sufficiently removed from the edge of each landfill and that any risk of potential contamination from constructing these wells is outweighed by the need to obtain complete groundwater monitoring data for these units. See Response to Comments, supra note 6, at 51-52. Moreover, the hazardous waste regulations cited by CSSI are inapplicable to these four landfills because they are solid waste (not hazardous waste) management units. See Fact Sheet at 70.

CONCLUSION

For the reasons set forth above and in the Region Response, and based on the submissions and record before me, CSSI's petition for review and motion to reopen the record are denied. 13

So ordered.

13 CSSI's Petition raised several other issues, but these have been settled through negotiations. See Region Response at Attachment 2. The permit should be modified accordingly. CSSI requests a thirty-day delay before the contested permit conditions become effective to allow for a smooth transition from interim to permitted status. This request is best resolved at the Regional level.

IN THE MATTER OF SPOKANE REGIONAL WASTE-TO

ENERGY

PSD Appeal No. 88-12

ORDER DENYING REVIEW

Decided June 9, 1989

Before the Administrator, U.S. Environmental Protection Agency

Opinion by William K. Reilly, Administrator:

In a joint petition filed pursuant to 40 CFR § 124.19 (1988),1 Citizens for Clean Air and Council for Land Care and Planning (“Petitioners") requested review of a Prevention of Significant Deterioration (PSD) permit issued to the Spokane Regional Waste-To-Energy Project ("Spokane") for construction of an 800-ton-per-day municipal waste incinerator at an existing landfill west of the City of Spokane. The permit determination was made by the Washington State Department of Ecology ("Ecology") pursuant to a delegation of authority from EPA Region X, Seattle, Washington. Because of the delegation, Ecology's permit determination is subject to the review provisions of 40 CFR § 124.19, and any permit it issues will be an EPA-issued permit for purposes of federal law. 40 CFR § 124.41; 45 Fed. Reg. 33,413 (May 19, 1980).

Petitioners object to the issuance of the permit because they believe it is deficient in several respects. In particular, they claim the permit does not meet "best available control technology" (BACT) requirements for emissions of nitrogen oxides (NOx) and for emissions of "trace [sic] metals and toxic pollutants such as dioxins and furans."2 Petition at 2. In making a BACT determination for NOx,

1 All references to the Code of Federal Regulations (CFR) are to the 1988 edition. 2 It is not clear what Petitioners mean by trace metals; however, I assume they are referring to small quantities of "heavy metals" such as lead and mercury. Cf. notes 8 and 28.

Continued