Goodyear Tire & Rubber Company

Plain-English summary

Goodyear Tire & Rubber Company operated a Beaumont, Texas plant that manufactured solution crumb rubber, hydrocarbon resins, and isoprene monomers. EPA Region VI applied both the Solution Crumb Rubber and Organic Chemicals, Plastics and Synthetic Fibers effluent guidelines to the plant's combined wastewater discharge. The Environmental Appeals Board held that the OCPSF guidelines did not apply to the combined discharge under the exemption in 40 C.F.R. § 414.11(d), although EPA could set specific limits using best professional judgment. The Board remanded the permit for new limits and monitoring requirements, correction of inconsistent zinc limits, and an amended application reflecting current production volumes. It declined to consider objections that Goodyear had not preserved in its hearing request or draft-permit comments.

Decision snapshot

• Cited authorities: Clean Water Act § 301; 40 C.F.R. §§ 122.22, 122.41, 124.13, 124.60, 124.74, 124.76, 124.91, 414.10, 414.11, and 428.30.
• Outcome: Permit remanded for revised limits, monitoring requirements, zinc corrections, and updated production data.
• Key point: When multiple industrial processes share one outfall, EPA must apply the correct effluent-guideline framework and may use best professional judgment where appropriate.

Full text (EPA EAB public release)

+670 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF GOODYEAR TIRE & RUBBER
COMPANY

NPDES Appeal No. 92-5

REMAND ORDER

Decided May 21, 1993

Syllabus

On September 11, 1992, this Board granted Goodyear Tire and Rubber Company’s
request for review of the denial of its Evidentiary Hearing Request in connection
with the issuance of a National Pollutant Discharge Elimination System permit. The
permit, No. TX0005061, was issued for Goodyear’s Beaumont, Texas plant, which
manufactures solution crumb rubber, together with hydrocarbon resins and isoprene
monomers.

Goodyear sought review on several grounds. First, Goodyear contended that EPA
Region VI had erred in setting limits for Outfall 001 based upon the application
of both the Solution Crumb Rubber Effluent Limitation Guidelines and the newer
Organic Chemicals, Plastics and Synthetic Fibers (“OCPSF”) Industry Effluent Limita-
tion Guidelines, which govern discharges from hydrocarbon resins and isoprene produc-
tion. Goodyear argued that its combined discharge, which is treated together and
discharged through a single outfall, is subject only to the Solution Crumb Rubber
Guidelines, and is exempt from the OCPSF Guidelines under the exemption set forth
in 40 C.F.R. §414.11(d). Second, Goodyear contended that should the OCPSF Guide-
lines apply, Region VI erred in imposing monitoring requirements for all 63 OCPSF
priority pollutants when the plant discharges only four of those pollutants (toluene,
phenol, benzene and nickel). Third, Goodyear contended that even if the OCPSF Guide-
lines apply, the Region erred in imposing permit limits on chromium, copper, cyanide,
lead and zinc. Fourth, Goodyear contended that the limits set for nickel are not
appropriate or achievable, and that to the extent a limit on zinc is appropriate the
Region erred in setting inconsistent limits for zinc. Finally, Goodyear contended that
Region VI erred in failing to take into account the fact that the plant had increased
its production more than 30 percent over its 1980 production levels, when the Region
set the plant’s permit limits.

Held: The permit is remanded for the following reasons: First, Region VI erred
in applying the OCPSF Guidelines to the plant’s combined wastewater discharge.
Nonetheless, specific OCPSF effluent limits may be appropriate as an exercise of
the Region’s Best Professional Judgment (“BPJ”). Therefore, the permit is remanded
for new limits and monitoring requirements to be set. Second, Region VI should
modify the permit on remand to eliminate the permit’s inconsistent zinc limits. Third,
because Solution Crumb Rubber effluent limits are set based on production volumes,

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GOODYEAR TIRE & RUBBER COMPANY 671

Region VI must now allow Goodyear to submit a revised permit application that
accurately reflects the plant’s current production volumes.

The Board will not consider Goodyear’s other objections because Goodyear failed
to preserve its objections to: (1) the imposition of metal and cyanide limits using
“BPJ” in its Evidentiary Hearing Request; and (2) the permit limits for nickel in
its comments on the draft permit.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Firestone:

Goodyear Tire and Rubber Company (“Goodyear”) sought review
on April 2, 1992, of the denial of its evidentiary hearing request
by U.S. EPA Region VI in connection with the issuance of National
Pollutant Discharge Elimination System (“NPDES”) Permit No.
TX0005061. The permit was issued for Goodyear’s Beaumont, Texas
plant, which manufactures solution crumb rubber, together with hy-
drocarbon resins and isoprene monomers. The permit authorizes
Goodyear to discharge into Kidd Gully, which leads into a navigable
water of the United States. At issue in this proceeding is Outfall
001, which is used by Goodyear for discharging wastewaters gen-
erated by both its solution crumb rubber production process, as well
as its hydrocarbon resin and isoprene monomer processes.

In May 1987, Goodyear filed an application with Region VI for
renewal of the Beaumont plant’s 1982 NPDES permit. EPA issued
a draft permit for public comment on July 30, 1988. Goodyear submit-
ted comments on the draft permit. Thereafter, on October 14, 1988,
Region VI issued a final permit to be effective from November 15,
1988, until November 14, 1993. On November 11, 1988, Goodyear
requested an evidentiary hearing to reconsider and contest Region
VI’s final permit decision. Region VI denied the request for an evi-
dentiary hearing on February 25, 1992. Goodyear filed a timely notice
of appeal and petition for review in April 1992 and, on September
11, 1992, this Board granted review in accordance with 40 C.F.R.
§ 124.91.

I. BACKGROUND

Goodyear manufactures solution crumb rubber at its Beaumont
plant together with several raw materials that go into the manufac-
ture of the rubber, including hydrocarbon resins and isoprene. As
noted above, the wastewater from all of these processes is combined,
treated together, and discharged through a single outfall. The rubber

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672 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

and raw materials are, however, listed under different Standardized
Industrial Classification (“SIC”) Codes: the solution crumb rubber
is listed under SIC Code-2822, hydrocarbon resins are listed under
SIC Code-2821, and isoprene is listed under SIC Code-2869.

In May 1987, Goodyear filed a permit application with EPA Re-
gion VI seeking to renew its 1982 NPDES permit.! The effluent
limitations in Goodyear’s 1982 NPDES permit for Outfall 001 were
based on the application of the Solution Crumb Rubber Effluent
Guidelines set forth in 40 C.F.R. § 428.30.2 (Fact Sheet for the 1982
NPDES permit—Exhibit G to Petition for Review.) Shortly after
Goodyear filed its May 1987 renewal application, EPA promulgated
a new set of guidelines, the Organic Chemicals, Plastics and Synthetic
Fibers (“OCPSF”) Industry Effluent Guidelines, which set separate
effluent limits for discharges from hydrocarbon resin and isoprene
production. See 40 C.F.R. § 414.10 et seq. By their terms, the OCPSF
Guidelines apply to “discharges from all establishments or portions
of establishments that manufacture * * * [OCPSF] products * * *,”
including products listed under SIC Code-2821 and SIC Code-2869.
40 C.F.R. §414.11(a) (emphasis added). The OCPSF regulation also
provides, however, that certain discharges are exempt from its pur-
view:

Notwithstanding paragraph (a) of this section, the
provisions of this part are not applicable to any dis-
charges for which a different set of previously pro-
mulgated effluent limitations guidelines and stand-
ards in this subchapter apply, unless the facility re-
ports OCPSF products under SIC codes 2865, 2869,
or 2821, and the facility’s OCPSF wastewaters are
treated in a separate treatment system or discharged
separately to a publicly owned treatment works.

40 C.F.R. §414.11(d).

Because the Beaumont plant reports products identified under
SIC codes 2822 (solution crumb rubber), 2821 (hydrocarbon resins),

1Goodyear filed an amended renewal application on March 15, 1988, in which
it explained that its production volume had increased by approximately 30% between
1980 and 1987 (Administrative Record at 340). Goodyear resubmitted this information
on May 25, 1988, in a letter to the Region (Administrative Record at 18). As discussed
later in this opinion, Goodyear contends that the Region erred in failing to consider
Goodyear’s production increase in setting permit limits.

2The Solution Crumb Rubber Effluent Guidelines apply to “discharges of pollut-
ants resulting from the manufacture of crumb rubber.” 40 C.F.R. § 428.30.

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GOODYEAR TIRE & RUBBER COMPANY 673

and 2869 (isoprene), Region VI determined that revised discharge
limits should be set for the Beaumont plant using both the new
OCPSF Guidelines and the Solution Crumb Rubber Guidelines. The
Region concluded that the § 414.11(d) exemption did not apply.

The draft permit for the Beaumont plant was issued for public
comment on July 30, 1988. It included limitations for both conven-
tional and 68 priority pollutants. On August 29, 1988, Goodyear sub-
mitted comments on the draft permit. Goodyear objected to the draft
permit on several grounds. In the comments relevant to this appeal,
Goodyear asserted that (1) the entire discharge from the Beaumont
plant is exempt from the OCPSF Guidelines under the terms of
the exemption set forth in 40 C.F.R. §414.11(d); (2) should the
OCPSF Guidelines apply to the plant’s discharge, permit limits and
monitoring requirements should be set for only the 4 priority pollut-
ants discharged by the plant (toluene, phenol, benzene and nickel),
not all 63 OCPSF priority pollutants; (3) should the OCPSF Guide-
lines apply, Goodyear should not be subject to permit limits under
the OCPSF Guidelines for any metals other than nickel;3 (4) “the
draft permit establishes limits for a number of priority pollutants
that are below analytical detection limits”;+ and (5) the proposed
effluent limits are based on outdated production data.5 (Administra-
tive Record at 97-148.)

On October 14, 1988, Region VI issued a final permit decision.
The Region rejected Goodyear’s contention that the OCPSF Effluent
Guidelines exemption extends to the portions of the discharge associ-
ated with the production of hydrocarbon resins or isoprene.6 The
Region also rejected all of Goodyear’s other comments on specific
permit conditions. The Region nonetheless changed the permit based
upon certain monitoring data submitted by Goodyear. More specifi-
cally, the Region agreed to reduce the monitoring frequency for cer-

3 See footnote 12 infra.

4 As discussed later in this opinion, Goodyear contends that this comment should
be construed as preserving its objection to the permit’s nickel limits.

5In its comments to the Region, Goodyear stated that it had increased production
from 1980 to 1987 by approximately 30%. (Administrative Record at 97.) Goodyear
later explained in its request for an evidentiary hearing, that this was achieved
by modernizing its facility and adding a group of polybutadiene reactors and strippers.
(Administrative Record at 15.)

6The Region did agree that the OCPSF exemption did apply to discharges arising
from the production of polybutadiene (one of the Beaumont plant’s synthetic rubber
products), and modified the final permit to reflect this determination. (Administrative
Record at 62.)

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674 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

tain metals from quarterly to annually. (Administrative Record at
62.)

Thereafter, on November 11, 1988, Goodyear filed a request for
an evidentiary hearing in which it reiterated its earlier objections
to the draft permit. (Administrative Record at 4-5.) In addition, Good-
year asserted for the first time, in its evidentiary hearing request,
that the nickel limits set in the permit “are not supported by ade-
quate data and have not been shown to be achievable,” and that
the Region had improperly imposed “two different sets of effluent
limitations and monitoring requirements for zinc.” (Administrative
Record at 5.)

More than three years later, on February 25, 1992, Region VI
denied Goodyear’s evidentiary hearing request. The Region explained
that (1) Goodyear’s arguments concerning the application of the
OCPSF Guidelines raise legal issues which are not appropriate for
a hearing; (2) because the OCPSF Guidelines apply, monitoring for
all 68 OCPSF priority pollutants is required under EPA’s regulations;
(3) Goodyear had failed to preserve its objections to the limitations
set for nickel and zinc, because it had failed to raise them in its
comments on the draft permit; (4) the Region did not have to consider
the Beaumont plant’s revised production data, because Goodyear had
failed to submit the information in its permit renewal application;
and finally (5) the Region had properly relied upon 40 C.F.R.
§ 122.44(e), not the OCPSF Guidelines, in setting permit limits for
chromium, copper, cyanide, lead and zinc. (Administrative Record
at 29-31.) Goodyear filed a timely appeal and petition for review
on April 2, 1992. Following receipt of the Region’s response, this
Board, on September 11, 1992, granted review. Having received open-
ing briefs from both parties and a reply brief from Goodyear this
matter is now ready for decision.

II. DISCUSSION
A. Application of the OCPSF Guidelines

As set forth in the order granting review, this Board granted
review to determine whether Region VI had erred in applying the
OCPSF Guidelines to the portion of the Beaumont plant’s discharge
attributable to the manufacture of hydrocarbon resins and isoprene.
Goodyear contends that the Beaumont plant is entitled to the exemp-
tion provided for under 40 C.F.R. § 414.11(d) of the OCPSF Guide-

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GOODYEAR TIRE & RUBBER COMPANY 675

lines, and that the plant’s single discharge should be regulated only
under the Solution Crumb Rubber Guidelines.”

As noted above, 40 C.F.R. §414.11(d) provides in relevant part:

[T]he provisions of this part are not applicable to
any discharges for which a different set of previously
promulgated effluent limitations * * * apply, unless
the facility reports OCPSF products under SIC codes
2865, 2869, or 2821, and the facilitys OCPSF
wastewaters are treated in a separate treatment sys-
tem * * *,

Goodyear asserts that the Beaumont plant meets the requirements
of the exemption because: (1) a different set of effluent limitation
guidelines—the Solution Crumb Rubber Guidelines—apply to the
Beaumont plant’s entire discharge, and (2) the wastewater from the
SIC Code-2821 (hydrocarbon resins) and SIC Code-2869 (isoprene)
production processes are not treated separately from the plant’s other
process wastewaters, but all are treated and discharged together
through Outfall 001. In support of its position Goodyear relies exten-
sively on EPA’s Development Document for Effluent Limitations and
New Source Performance Standards for the Tire and Synthetic Seg-
ment of the Rubber Processing Point Source Category (hereinafter
“Rubber Development Document”). (Administrative Record at 107-
112.) The Rubber Development Document identifies the Beaumont
plant as one of the five rubber plants EPA evaluated in establishing
the Solution Crumb Rubber Guidelines. In addition, the Rubber De-
velopment Document reveals that the Agency was aware of the plant’s
hydrocarbon resin and isoprene production activities when it used
the facility as one of the bases for the rubber guidelines. Moreover,
the document shows that the Agency knew that all of the plant’s
wastewater was treated and discharged together. Goodyear contends
that the Rubber Development Document demonstrates that EPA, in
establishing the rubber guidelines, took into account all of Goodyear’s
wastestreams. Accordingly, Goodyear argues that the facility’s single
discharge has been subject to previously promulgated effluent limita-
tion guidelines, and that the plant therefore meets the first prong
of the OCPSF exemption under 40 C.F.R. §414.11(d). In addition,

7As discussed infra, the Region relied upon the OCPSF Guidelines and Solution
Crumb Rubber Guidelines for setting permit limits except for chromium, copper, cya-
nide, lead and zinc. The Region apparently relied upon 40 C.F.R. §122.44(e) in setting
limits for those metals and cyanide. Therefore, the discussion in Section A focuses
solely on the application of the OCPSF Guidelines to the Beaumont plant’s other
pollutants.

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Goodyear argues that because the Beaumont plant’s wastestreams
are not treated separately but are treated together, the plant meets
the second prong of the § 414.11(d) exemption. In these circumstances,
Goodyear asserts that the Region erred in applying the OCPSF guide-
lines when it set the effluent limits for the Beaumont plant in 1988.

In response, Region VI argues that Goodyear is not entitled to
the exemption because the portion of the discharge attributable to
the Beaumont plant’s OCPSF products (SIC Codes 2821 and 2869)
“ha[s] never been previously regulated * * *.” (Region VI’s November
16, 1992 Brief at 7.) In support of its position, Region VI relies
on an October 18, 1991, letter from Mr. Elwood Forscht, EPA Head-
quarters Chief of the Chemicals Branch in the Engineering and Anal-
ysis Division, to Mr. Thomas P. Behlen, an attorney with the City
Attorney’s Office in Columbus, Ohio (hereinafter “Forscht letter”),
regarding the application of the OCPSF Guidelines to an indirect
discharger in a matter unrelated to this permit proceeding. (Adminis-
trative Record at 370-371.) In explaining why the indirect discharger
was not entitled to the exemption, the letter states:

The discharge referred to [in §414.11(d)] is the
OCPSF process discharge, not the combined outfall
discharge. In the context of effluent guidelines the
effluent from each process is considered to be a dis-
charge, even if it is combined with other process
effluents before the ultimate outfall discharge. [Ad-
ministrative Record at 371.]

Thus, the letter concludes that the portion of this discharger’s
wastewater which was not previously regulated is subject to the
OCPSF Guidelines, even though the OCPSF process wastestream
was combined with other, previously regulated wastestreams. (Admin-
istrative Record at 371-72.) Based on this letter, the Region concludes
that the OCPSF exemption does not apply to the Beaumont plant.
The Region relies on the fact that wastewater resulting from the
isoprene and hydrocarbon resin production was not specifically regu-
lated under the previously promulgated Solution Crumb Rubber
Guidelines.

For the reasons set forth below, we find the Region’s reliance
on the Forscht letter misplaced and conclude that the Region erred
in applying the OCPSF Effluent Limitation Guidelines in this case.
We find that the plain language of the exemption, together with
the preamble to the OCPSF Guidelines, 52 Fed. Reg. 42523-24 (Nov.
5, 1987), and EPA’s supporting Development Document for Effluent

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GOODYEAR TIRE & RUBBER COMPANY 677

Guidelines and Standards for the Organic Chemicals, Plastics and
Synthetic Fibers Point Source Category (hereinafter “OCPSF Develop-
ment Document”), make it clear that the OCPSF regulation should
not apply in this case.

First, the regulatory exemption simply states that the OCPSF
Guidelines do not apply to previously regulated “discharges.” That
is, the exemption speaks in terms of previously regulated discharges,
not previously regulated wastestreams. Mr. Forscht’s attempt to rede-
fine discharge to mean wastestream is contrary to the express lan-
guage of the regulation which defines discharges to include “either
the discharge of a single pollutant or * * * multiple pollutants.”
40 C.F.R. §401.11(h).8 The term discharge of pollutants is, in turn,
defined in relevant part to mean, “the addition of any pollutant
to navigable waters from any point source.” Id. Here, the wastewater
from the hydrocarbon resin and isoprene processes is treated in com-
bination with the solution crumb rubber wastewater and then directly
“discharged,” with the solution crumb rubber wastewater, through
Outfall 001. It is that combined discharge that has been previously
regulated.9

Further, the preamble to the OCPSF Guidelines goes on to ex-
plain with regard to the exemption that it was intended to cover
the situation presented by the Beaumont plant:

The OCPSF regulation does not apply to discharges
from OCPSF product/process operations which are
covered by the provisions of other categorical indus-
try effluent limitation guidelines and standards if
the wastewater is treated in combination with the
non-OCPSF industrial category regulated wastewater

• • • (52 Fed. Reg. at 42523.)

Thus, where OCPSF wastewater has been subject to limitations under
other, earlier promulgated industry effluent standards and is treated
in combination with previously regulated non-OCPSF wastewater,
the OCPSF exemption is met. The OCPSF Development Document
further confirms this view. In the Summary and Conclusions section
of the OCPSF Development Document, the Agency states:

8The OCPSF regulations provide that the “definitions * * * set forth in Part
401 of this Chapter shall apply to this part.” 40 C.F.R. §414.10(a).

9This combined treatment and discharge system is identified in a diagram at-
tached to Goodyear’s permit renewal application. (Administrative Record at 190.)

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The regulations are not applicable to any discharges
for which a different set of previously promulgated
effluent limitation guidelines and standards in 40
C.F.R. Parts 405 through 699 apply, unless the facil-
ity reports OCPSF production under SIC codes 2865,
2869 or 2821, and the facilities OCPSF wastewater
is treated in a separate treatment system or dis-
charged separately to a POTW. [OCPSF Development
Document at II-6j (emphasis added).]

Here, Goodyear has shown that EPA was aware of the entire
Beaumont plant’s discharge when it established the Solution Crumb
Rubber Guidelines. (Administrative Record at 11.) These Guidelines
appear at 40 C.F.R. § 428.30. Further, there is no dispute that the
plant’s OCPSF and non-OCPSF wastewater is combined for treatment
and discharge. Finally, the parties agree that in the past this single
discharge has been subject to limitations established in the Solution
Crumb Rubber Guidelines.

In these circumstances, the Region’s contention that the exemp-
tion applies only when the OCPSF product wastewater was expressly
subject to a separate set of previously promulgated standards is not
supportable. The Region’s view is not supported by the plain language
of the exemption, the preamble to the regulation, nor the OCPSF
Development Document. Thus, we conclude that Region VI erred in
applying the OCPSF Guidelines to any portion of the combined dis-
charge from the Beaumont plant.!°

Our conclusion that the OCPSF regulation does not directly apply
to any of the plant’s discharge does not, however, end our inquiry.
The Beaumont plant continues to discharge contaminants and pollut-
ants which, but for the §414.11(d) exemption, would be subject to
specific OCPSF effluent limitations. As such, the Region must now
be given the opportunity to determine whether certain OCPSF efflu-
ent limitations are appropriate based upon the Region’s application
of Best Professional Judgment (“BPJ”).!11 Indeed, the preamble to

10We note that this opinion turns largely on the unique facts surrounding the
role the Beaumont plant played in the development of the Solution Crumb Rubber
Guidelines. This opinion does not resolve the broader issue of whether the OCPSF
exemption applies in all cases where OCPSF and previously regulated non-OCPSF
wastestreams are combined into a single discharge.

11 As discussed infra, the Region used BPJ to set the limits only for chromium,
cyanide, copper, lead and zinc.

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GOODYEAR TIRE & RUBBER COMPANY 679

the OCPSF regulation expressly notes that the OCPSF regulation
will likely support limitations based upon BPJ:

{T]he OCPSF data base and effluent limitations and
standards provide permit issuing authorities with
guidance for establishing Best Professional Judgment
(“BPJ”) permits for OCPSF production activities to
which this regulation does not apply * * *.

[E]ven in cases where priority pollutants from
OCPSF production covered by other categorical
standards * * * have been excluded by these regula-
tions * * *, BPJ priority pollutant regulation for in-
dividual plants having OCPSF production may be
appropriate.

52 Fed. Reg. at 42523. Accordingly, this permit is remanded with
instructions for the Region to establish permit provisions for Outfall
001 based upon the application the Solution Crumb Rubber Guide-
lines and, if appropriate, BPJ.

B. Monitoring Requirements

As noted above, the present permit requires that Goodyear mon-
itor all 63 OCPSF priority pollutants. Goodyear argues that to the
extent the OCPSF Guidelines apply to the Beaumont plant’s dis-
charge, Region VI erred in imposing “burdensome and unnecessary
monitoring requirements” in the permit. (Brief in Response to Order
Granting Review at 13.) The Region acknowledges in its Response
to the Petition at 5, that this issue is dependent on the determination
made with regard to the application of the OCPSF Guidelines in
the first instance. Having concluded that the OCPSF Guidelines do
not apply and having remanded the permit for that reason, we also
instruct the Region to remove the existing monitoring requirements
from the permit. Any new monitoring requirements should be consist-
ent with the Region’s final determination on appropriate effluent
limitations.

C. Effluent Limitations For Chromium, Copper, Lead, Zinc and Cya-
nide

Goodyear argues that Region VI erred in imposing effluent limi-
tations on chromium, copper, cyanide, lead and zinc. In particular,
Goodyear contends that metal limits and cyanide limits are not appro-

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680 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

priate under the OCPSF Guidelines, set forth at 40 C.F.R. § 414.91.
In addition, Goodyear contends for the first time that to the extent
the Region is relying on its best professional judgment to support
the limits under 40 C.F.R. § 122.44(e), Goodyear’s metal and cyanide
discharge does not warrant any limitation. More specifically, Good-
year argues that the Region has no basis for imposing any BPJ
limits under § 122.44(e), because:

In Goodyear’s case, the demonstrated levels of chro-
mium, copper, lead and zinc are significantly less
than the maximum monthly limitations contained in
the OCPSF regulations * * *. Therefore, the Re-
gional Administrator’s decision * * * is legally and
factually unsupported and is a clearly erroneous in-
terpretation of EPA’s regulations.

Petition for Review at 8.

It is our view that Goodyear’s objection to the imposition of
these effluent limits based on BPJ comes too late, and therefore
we will not consider Goodyear’s arguments on appeal. Throughout
the proceedings on this permit, Goodyear has contended that the
Region improperly imposed effluent limits under the OCPSF Guide-
lines. As we have determined, the Region’s reliance on the OCPSF
Guidelines in setting numerous limits was improper. Nonetheless,
from the outset the Region has clearly indicated that it based the
permit’s chromium, copper, lead, zinc and cyanide effluent limits on
its best professional judgment. For example, in the Region’s response
to Goodyear’s comments to the draft permit on the grounds that
the OCPSF regulation did not apply, the Region stated:

1240 C.F.R. §414.91 provides that OCPSF effluent limitations for chromium, cop-
per, lead, nickel, zinc and total cyanide apply only if the waste stream is listed
in Appendix A to the regulation or the process waste stream contains significant
amounts of these metals or cyanide. The Region does not dispute that the Beaumont
plant does not fall under §414.91 of the OCPSF guidelines except for nickel. The
Region explained, in its response to comments and in its denial of Goodyear’s Evi-
dentiary Hearing Request, that it relied upon its best professional judgment (“BPJ”),
as provided for in 40 C.F.R. § 122.44(e)(1) in setting limits for the chromium, copper,
lead, cyanide and zinc. Section 122.44(e)(1), in turn, provides:

(1) Limitations must control all toxic pollutants which the Director
determines * * * are or may be discharged at a level greater
than the level which can be achieved by the technology-based
treatment requirements appropriate to the permittee under
§ 125.3(c).

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GOODYEAR TIRE & RUBBER COMPANY 681

It is the best professional judgement of the permit

writer that the effluent limitations and monitoring

requirements in the draft permit are reasonable. This

is based upon the limited information available to

consider and the obligation of the permit writer to

identify any additional process wastewater streams

which may contain metals or cyanide for regulation

in the permit.
Administrative Record at 67. Despite the Region’s express reliance
on BPJ in its response to comments, Goodyear, in its Evidentiary
Hearing Request, objected to the imposition of effluent limits for
metals and cyanide on the sole ground that the limits were not
required under the OCPSF Guidelines.

[[T]he OCPSF Guidelines provide that the metal lim-

its apply only to the process wastestreams listed in

Appendix A. The Beaumont plant does not generate

any of the wastestreams listed in Appendix A. As

a result, there is no basis for the imposition of limits

on chromium, copper, cyanide, lead or zinc.
Administrative Record at 9.

In these circumstances, Goodyear cannot now be heard to argue
that the Region improperly set metal limits and a cyanide limit
based on the Region’s application of best professional judgment. To
preserve an issue for appeal, an NPDES permit applicant must raise
that issue in its request for an evidentiary hearing. 40 C.F.R.
§ 124.74; In re Sequoyah Fuels Corporation, NPDES Appeal No. 91-
12 (EAB Aug. 31, 1992). By not asserting its objection regarding
the imposition of standards based on best professional judgment in
its Evidentiary Hearing Request, Goodyear waived its objection and
failed to preserve the issue for consideration by this Board.

D. The Effluent Limitations for Nickel

Goodyear contends that the Beaumont plant’s permit imposes
effluent limitations for nickel that are not supported by adequate
data and are not shown to be achievable. (Brief in Response to Order
Granting Review at 15.) In response, the Region argues that Good-
year failed to raise this issue during the comment period on the
draft permit and, therefore, the issue has not been preserved for
review. (Response to Petition for Review at 7.) We agree with the

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682 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Region and hold that the issue was not preserved for the Board’s
consideration.

Under 40 C.F.R. § 124.13, any person who believes that a permit
condition is inappropriate must raise “all reasonably ascertainable
issues and * * * all reasonably available arguments supporting [the
person’s] position by the close of the public comment period.” Accord-
ingly, in order to contest a final permit condition in an evidentiary
hearing, that condition must first be identified during the comment
period. In re NPC Service, NPDES Appeal No. 91-4 (May 30, 1991).
Goodyear concedes that in its comments on the draft permit it “did
not phrase this issue in the exact language used in its request for
an evidentiary hearing” (and as now reflected in its brief). Nonethe-
less, Goodyear asserts that the Region was adequately apprised of
the issue in “Comment 6” of its comments to the draft permit. (Octo-
ber 23, 1992 Brief at 16.) Based on our review of “Comment 6,”
we conclude that Goodyear did not preserve any issues relating to
nickel when commenting on the draft permit.

In “Comment 6,” Goodyear objected to the draft permit on the
grounds that “the draft permit establishes limitations at concentra-
tions that are not analytically detectable.” (Administrative Record
at 100.) Nowhere in the comment does Goodyear expressly question
the basis for the nickel limitation or contend that it cannot achieve
the nickel limit. Indeed, there is no mention of nickel at all in Com-
ment 6. Rather, the thrust of the comment appears to have been
a request that “no permit limits be established that are below the
appropriate practical quantitation limit (“PQL”) for the compound
being regulated.” (Administrative Record at 101.)

In these circumstances, Goodyear did not preserve for review
its objections to the permit’s nickel limitations. Moreover, Goodyear
does not argue that this Board should consider its objections to the
nickel limit under the “good cause” exemption provided for under
40 C.F.R. §124.76.15 For these reasons, the nickel limitations estab-

13Under 40 C.F.R. § 124.76, a party may raise an issue not previously identified
during the comment period where “it could not reasonably have ascertained the issue

• • • within the time required * * * or reasonably anticipated the relevance or mate-
      riality of the information sought to be introduced.” Here, Goodyear could not reasonably
      make such claims. We note that in Goodyear’s “Comment 5” to the draft permit
      Goodyear apparently agreed that at least some permit limit for nickel was appropriate.
      (Administrative Record at 99.) In particular, Goodyear stated: “permit limits should
      not be set for metals other than nickel” (emphasis added). Accordingly, to the extent
      Goodyear had objections to the nickel limit set by the Region, it should have raised
      them in its comments.

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GOODYEAR TIRE & RUBBER COMPANY 683

lished in the Beaumont plant’s permit will not be examined by this
Board.1!4

E. The Effluent Limitations for Zinc

Goodyear also objects to the effluent limits set for zinc in the
Beaumont plant’s permit. In particular, Goodyear claims that the
final permit contains two inconsistent effluent limitations and mon-
itoring requirements. (Brief in Response to Order Granting Review
at 16.) In response, Region VI argues that Goodyear failed to preserve
this issue during the comment period on the draft permit. (Response
to Petition for Review at 7.) Nonetheless, the Region concedes the
error and states that until such time as a minor permit modification
can take place, Goodyear “would be held to the less stringent of
the two limits.” (Response to Petition for Review at 7.)

As noted above, we are remanding the Beaumont permit to the
Region so that the permit can be revised in accordance with this
opinion. On remand, the Region should modify the permit to reflect
a zinc effluent limit and monitoring requirement consistent with the
Region’s representations on appeal.

F. Production Data

Finally, Goodyear challenges the Beaumont plant’s permit on
the grounds that Region VI erred in basing the permit’s effluent
limits on outdated solution crumb rubber production data. In particu-
lar, Goodyear argues that effluent limitations for solution crumb rub-
ber facilities are to be set based on pounds of pollutant per 1000
pounds of product and that the Region erred in failing to consider
the updated production data Goodyear submitted in its comments
to the draft permit. (Brief in Response to Order Granting Review
at 17.)

The Region argues, in response, that the Region did not consider
Goodyear’s data because Goodyear failed to “provide the information
in its permit renewal application.” (Response at 8.) More specifically,
the Region states that under the rules governing permit applications,
40 C.F.R. § 122.22(d), Goodyear was obliged to provide accurate pro-

14Nonetheless, we note that because it appears from the Administrative Record
that the Region relied upon the OCPSF Guidelines in setting the nickel limit, the
limit will need to be reproposed in accordance with Section A of this opinion. Accord-
ingly, Goodyear will be able to raise objections to any new nickel limit in comments
to a new draft permit. See 40 C.F.R. §124.60(b); cf. In re City and County of San
Francisco, NPDES Appeal No. 91-18, at 18 (EAB Mar. 24, 1993).

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684 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

duction data, and that the Region was not required to consider the
data when they were first presented in Goodyear’s comments on
the draft permit.

As noted above (footnote 1, supra), our review of the Administra-
tive Record reveals that Goodyear did put the Region on notice of
the plant’s rubber production increase in its amended permit renewal
application (Administrative Record at 340) and in a letter to the
Region which predates the draft permit. (Administrative Record at
18.) As such, the Region’s contention that it did not receive the
data until after issuance of the draft permit is not supported by
the record. More importantly, however, now that we have concluded
that the Region must revise this permit to reflect our ruling on
the inapplicability of the OCPSF Guidelines, the Region’s assump-
tions about the appropriate permit limits have fundamentally
changed. Indeed, the Region recognized that the production data
would become more important if this Board were to conclude that
the OCPSF Guidelines do not apply. (Response to Petition for Review
at 8.)

In these circumstances, we believe that the Region should allow
Goodyear to submit an amended permit renewal application which
reflects the Beaumont plant’s current production volumes so that
appropriate effluent limitations may be set.15 See In re Miners Advo-
cacy Council, NPDES Appeal No. 91-23, at 5 (EAB, Sept. 3, 1992)
(reopening the application process may be appropriate to allow for
an equitable resolution where the Region’s original legal assumptions
regarding the permit have been rejected by the Board). Therefore,
we are remanding this permit with the direction that Region VI
provide Goodyear with the opportunity to submit an amended permit
application to include accurate and complete information on the Beau-
mont plant’s current rubber production volumes.

III. CONCLUSION

For the above-stated reasons, we are remanding this permit to
the Region to establish appropriate permit limitations consistent with
the holdings in this opinion. First, the Region must now allow Good-
year to submit an amended permit application that accurately reflects

15In its response to comments, Region VI explained that it could not consider
Goodyear’s production increase in part because Goodyear had not complied with the
new source review requirements under 40 C.F.R. § 122.41(l). To the extent Goodyear’s
production increase triggers new source review, as suggested by Region VI, nothing
in this opinion should be construed as limiting Goodyear’s obligation to comply with
those requirements.

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GOODYEAR TIRE & RUBBER COMPANY 685

the plant’s current production volumes. Second, new permit limits
for Outfall 001 must be set using the Solution Crumb Rubber Guide-
lines and, if appropriate, BPJ. Third, the limits for chromium, lead,
copper and cyanide, which were based on the application of BPJ,
are not altered by this decision and may remain in the permit.
Fourth, the Region shall modify the permit to eliminate the permit’s
inconsistent zinc limits. Final agency action for all issues concerning
this permit shall occur only upon completion of the administrative
appeals process to the Board from the remanded proceeding. 40
C.F.R. § 124.91(f).

So ordered.

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