GSX Services of South Carolina, Inc.

Plain-English summary

GSX Services of South Carolina, Inc. operates a hazardous-waste treatment, storage, and disposal facility in Pinewood, South Carolina. GSX challenged the permit's term, definitions and designations of solid-waste management units, waste-analysis requirements, testing requirements, exposure-information updates, land-disposal permitting, minimum-technology requirements, and facility-location conditions. The Environmental Appeals Board remanded the permit for a new term, reconsideration of SWMU #4, removal of the exposure-information update condition, reevaluation of minimum-technology requirements under newer rules, and public comment on the location conditions. It denied review of the other challenges, including the permit's SWMU definition, testing requirements, and the obligation to permit the identified land-disposal units.

Decision snapshot

• Cited authorities: RCRA §§ 3004(u), 3005(c)(2) and (c)(3), and 3019(a); 40 C.F.R. parts 124, 264, 268, and 270.
• Outcome: The permit was remanded in part, and review was denied on the remaining issues.
• Key point: A permit may be remanded when the regional record does not explain the permit term, a listed SWMU has conflicting support, newer minimum-technology rules affect the conditions, or new location standards were added without public comment.

Full text (EPA EAB public release)

GSX SERVICES OF SOUTH CAROLINA, INC. 451

IN THE MATTER OF GSX SERVICES OF SOUTH
CAROLINA, INC.

RCRA Appeal No. 89-22

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided December 29, 1992

Syllabus

This is a petition for review of the federal portion of a permit issued by Region
IV under the 1984 Hazardous and Solid Waste Amendments to the Resource Conserva-
tion and Recovery Act. The Petition—filed by GSX Services of South Carolina, Inc.
(GSX)—seeks review of a permit for GSX’s hazardous waste treatment, storage, and
disposal facility in Pinewood, South Carolina. GSX asks that review be granted with
respect to: (1) the three-year permit term; (2) the permit’s definition of “solid waste
management unit”; (3) the designation of certain units as Solid Waste Management
Units (SWMUs); (4) the requirement that GSX submit a sample waste analysis plan
within sixty days of the effective date of the permit; (5) the requirement that GSX
test all off-site generated waste and waste from a representative sample of every
100th vehicle delivering hazardous wastes; (6) the requirement that GSX update expo-
sure information; (7) the Region’s failure to permit certain units; (8) the permit’s
minimum technology requirements; and (9) the inclusion of facility location standards
which were not identified in the draft permit.

Held: The permit is remanded and the Region is ordered to: (1) establish a
new permit term and allow GSX and other interested parties an opportunity to submit
comments; (2) determine whether an area designated as SWMU #4 should be removed
from the permit; (3) remove the permit condition requiring GSX to update the exposure
information report; (4) reevaluate the permit’s minimum technology requirements in
light of the new rules addressing liners and leak detection systems for hazardous
waste land disposal units; and (5) publicly notice the permit’s facility location require-
ments and allow GSX and other interested parties to submit comments. Review is
denied with regard to all other issues.

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452 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

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

Opinion of the Board by Judge Firestone:
I. BACKGROUND

GSX Services of South Carolina, Inc. (GSX) has filed a petition
seeking review of the federal portion of a permit issued by Region
IV under the 1984 Hazardous and Solid Waste Amendments (HSWA)
to the Resource Conservation and Recovery Act of 1976 (RCRA),
42 U.S.C.A. §§ 6901-6992k.1 As requested by the Agency’s Chief Judi-
cial Officer,2 the Region filed a response to GSX’s petition for review.

GSX operates a commercial hazardous waste and industrial
waste treatment, storage, and disposal facility located in Pinewood,
South Carolina. The facility handles hazardous wastes from a variety
of sources including industrial sources, hazardous waste storage fa-
cilities, waste site cleanup companies, waste storage and treatment
companies, and transporters. Existing waste-handling operations in-
clude a 2000-drum storage building, a 2000-drum waste solidification
building for containers and selected bulk materials, and a 125-acre
secure landfill. The final HSWA permit (dated July 27, 1989) re-
quires, among other things, investigation of four of the facility’s solid
waste management units (SWMUs) and regulates the facility’s land
disposal operations. GSX argues on appeal that: (1) the Region im-
properly limited the permit term to three years; (2) the permit im-
properly defines “solid waste management unit”; (3) certain units
were improperly designated as Solid Waste Management Units
(SWMUs); (4) the requirement that GSX submit a sample waste
analysis plan within sixty days of the effective date of the permit
is unconstitutionally vague; (5) the permit improperly requires that
GSX test all off-site generated waste and waste from a representative
sample of every 100th vehicle delivering hazardous wastes; (6) the
requirement that GSX update exposure information exceeds the Agen-
cy’s statutory authority; (7) the Region failed to permit certain units
in violation of RCRA; (8) the permit’s minimum technology require-

1The non-HSWA portion of the permit was issued by the State of South Carolina,
an authorized State under RCRA § 3006(b), 42 U.S.C. § 6926(b).

2 At that time, the Agency’s Judicial Officers provided support to the Administrator
in his review of permit appeals. Subsequently, effective on March 1, 1992, the position
of Judicial Officer was abolished and all cases pending before the Administrator,
including this case, were transferred to the Environmental Appeals Board. 57 Fed.
Reg. 5321 (Feb. 13, 1992).

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GSX SERVICES OF SOUTH CAROLINA, INC. 453

ments are arbitrary and capricious; and (9) the inclusion of facility
location standards in the final permit is improper.

II. DISCUSSION

Under the rules governing this proceeding, a RCRA permit ordi-
narily will not be reviewed unless it is based on a clearly erroneous
finding of fact or conclusion of law, or involves an important matter
of policy or exercise of discretion that warrants review. See 40 C.F.R.
§ 124.19; 45 Fed. Reg. 33,412 (May 19, 1980). The preamble to section
124.19 states that “this power of review should only be sparingly
exercised,” and that “most permit conditions should be finally deter-
mined at the Regional level * * *.” Id. The burden of demonstrating
that review is warranted is on the Petitioner. See Pollution Control
Industries of Indiana, Inc., RCRA Appeal No. 92-3, slip op. at 3
(EAB, August 5, 1992); Sandoz Pharmaceuticals Corp., RCRA Appeal
No. 91-14, slip op. at 3 (EAB, July 9, 1992).

1. Permit Term

As a threshold matter, GSX objects to the 3-year term established
in the permit. The final permit states that it “is effective as of
September 1, 1989, and shall remain in effect until September 1,
1992 * * *.”3 The draft permit did not, however, contain either an
effective or an expiration date. GSX argues that the Region failed
to provide an adequate rationale for the 3-year term in the final
permit. We agree.

Although the Region is correct in asserting that establishing a
permit term is an exercise of discretion which should, in most cases,
be determined at the Regional level (Region’s Response at 3—4), the
Region must provide an adequate rationale for its determination.
In re Chemical Waste Management, Inc., RCRA Appeal No. 87-12,
unpub. op. at 7-8 (Adm’r, May 27, 1988) (permit term must reflect
the Region’s “considered judgment”).

The Region explains in its Response that the 3-year term was
selected to coincide with the State permit term. Region’s Response

3Under the rules governing this appeal, the petition stayed the effective date
of this permit and the expiration date. 40 C.F.R. §124.15. In order to ensure a
viable permit following appeal, however, GSX would have been well advised to seek
renewal in accordance with the procedures established in 40 C.F.R. Part 270, Subpart
B, so that the provisions of the expired permit would have stayed in effect pursuant
to 40 C.F.R. §270.51. Had the Board determined that the Region had provided ade-
quate support for the permit’s 3-year term, the permit would have expired and this
case may have become moot.

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454 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

at 5. There is nothing in the pre-existing record, however, to docu-
ment this rationale for the 3-year term.* As such, the record does
not reflect the “considered judgment” necessary to support the Re-
gion’s determination. Accordingly, the permit is remanded and the
Region is directed to establish a new permit term and to allow the
permittee and other interested parties an opportunity to submit com-
ments before establishing a new permit date.5

2. SWMU Definition

GSX contends that the permit improperly defines the term “solid
waste management unit.”6 Specifically, GSX argues that because
“SWMU” is not defined in RCRA or its implementing regulations,
“the Region lacks any regulatory or statutory basis for this defini-
tion.” Petition for Review at 6. In addition, GSX contends that the
permit’s definition conflicts with the statutory definition of “solid
waste management” by providing that unintentional acts can create
a SWMU. According to GSX, a SWMU can arise only from the inten-
tional management of hazardous waste. We reject both assertions.

First, as the Board has recently stated, although neither the
statute nor the regulations expressly define “SWMU”, the terms “solid
waste management” and “unit” are defined. See General Motors Cor-
poration, Delco Moraine Division (North and South Plants), RCRA
Consolidated Appeal Nos. 90-24, 90-25, unpub. op. at 4 (EAB, Nov.
6, 1992). “Solid Waste Management” is defined as “the systematic
administration of activities which provide for the collection, source
separation, storage, transportation, transfer, processing, treatment,
and disposal of solid waste.” RCRA § 1004(28), 42 U.S.C. §6903(28).
The term “unit” refers to any contiguous area of land on or in which
waste is placed. See 47 Fed. Reg. 32,289 (July 26, 1982). Based
upon these definitions, “the term ‘SWMU’ plainly includes any unit

4The Region in its Response also states that it selected a 3-year term after
considering “Congressional actions to limit the duration of permits as well as the
facility’s proximity to a wetlands in light of EPA’s forthcoming locations standards.”
Region’s Response at 4. There is nothing in the record on appeal, however, to document
this rationale and we express no opinion as to whether this rationale would have
supported a 3-year term.
5In this connection, we express no view on whether or not a 3-year term would
be appropriate for this facility.
6 Permit Condition I.G.3. defines “Solid Waste Management Unit” as:
[A]lny unit which has been used for the treatment, storage, or
disposal of solid waste at any time, irrespective of whether the
unit is or ever was intended for the management of solid waste.
RCRA regulated hazardous waste management units are also solid
waste management units.

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GSX SERVICES OF SOUTH CAROLINA, INC. 455

(contiguous area of land on which waste is placed) used for solid
waste management (the systematic collection, source separation, stor-
age, transportation, transfer, processing, treatment or disposal of
solid waste).” Morton International, Inc. (Moss Point, Mississippi),
RCRA Appeal No. 90-17, unpub. op. at 4 (Adm’r, Feb. 28, 1992).
The permit’s definition is consistent with these definitions.

Second, as we recently held in General Motors, supra, at 5, the
legislative history of RCRA §3004(u) clearly indicates that the term
SWMU embraces any unit at which solid waste management actually
occurred regardless of whether such management was intended. See
H.R. Rep. No. 198, 98th Cong., Ist Sess. Part 1, 60 (1983) (Under
RCRA §3004(u), the Agency should examine all units “from which
hazardous constituents might migrate irrespective of whether the
units were intended for the management of solid and/or hazardous
wastes.”); 50 Fed. Reg. 28,712 (July 15, 1985). We therefore reject
GSX’s assertion that only a unit intended for managing solid or
hazardous waste may be considered a SWMU.

3. Erroneous SWMU Designations

Permit Condition II.A.1. imposes the requirements of part II of
the HSWA permit on those SWMUs listed in Appendix A, Paragraph
I.7 These SWMUs include certain excavated emergency spill control
sumps (SWMU #2) and an old scrap area (SWMU #4). GSX contends
that the Region improperly included these units in the final permit.
GSX explains that on June 7, 1988, it and Region IV signed a RCRA
§3008(h) order8 addressing the units listed in Appendix A. With
regard to SWMU #2, the Order states that a site inspection revealed
no visible signs of release. The SWMU was not, therefore, included
in the §3008(h) Order. Similarly, the Region did not have sufficient
evidence of a release to include SWMU #4 in the Order. Nevertheless,
the Region now contends that a sufficient factual basis exists for
requiring further investigation at both SWMUs.

7Part II of the permit requires, among other things, a RCRA Facility Assessment
(RFA) and a RCRA Facility Investigation (RFI.
8RCRA §3008(h)(1) states, in part:
Whenever on the basis of any information the Administrator deter-
mines that there is or has been a release of hazardous waste
into the environment from a facility authorized to operate under
section 6925(e) of this title, the Administrator may issue an order
requiring corrective action or such other response measure as he

deems necessary to protect human health and the environment

• OR

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456 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

With regard to SWMU #2, the Region points to a sampling report
submitted by GSX on March 17, 1987—a year before the §3008(h)
Order was signed. The Region states that in the spring of 1989,
one of its engineers examined this report and discovered that it
“documented the presence of volatile organic constituents in soil sam-
ples taken in the location of SWMU #2.” Region’s Response at 10.
With regard to SWMU #4, the Region argues that:

The initial 1984 RFA report set out that the nature
of SWMU number 4, is not completely known and
the SWMU is in an area of shallow contaminated
ground water. Because of the lack of information on
the source of ground water contamination and this
SWMU’s close location to the contamination, the Re-
gion determined * * * a sufficient factual basis ex-
isted for listing the SWMU in the permit as requiring
further investigation.

Region’s Response at 11-12.

In its Petition for Review GSX contends that because the Region
examined the 1987 report prior to signing the §3008(h) Order and
concluded that no release had occurred from either SWMU #2 or

4, “it is now estopped from revisiting that Order in the context

of this permit.” Petition for Review at 9. In addition, GSX contends
that the listing of these units exceeds the Region’s statutory authority
under RCRA §3004(u) because EPA has failed to demonstrate that
a release has occurred at either of these units. Although we reject
GSX’s estoppel argument, we conclude that, with regard to SWMU

4, the permit must be remanded.

It is well settled that the Agency need not definitively establish
that a release has occurred before imposing corrective action require-
ments. Rather, the Agency may impose such requirements where
it suspects a release or determines that a release is likely to have
occurred. See In re Sandoz Pharmaceuticals Corp., RCRA Appeal
No. 91-14, slip op. at 11 (EAB, July 9, 1992); In re Marathon Petro-
leum Co., RCRA Appeal No. 88-24, unpub. op. (Adm’r, Nov. 16, 1990).
See also RCRA Facility Investigation Guidance, at 1-6 (Interim Final;
EPA Office of Solid Waste, May 1989) (suspected release is sufficient
to require further investigation).

In the present case, the Region concluded, based on the 1987
report submitted by GSX, that a release at SWMU #2 was likely.

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GSX SERVICES OF SOUTH CAROLINA, INC. 457

According to this report, test results of soil samples from the area
around the SWMU indicated the presence of volatile organic constitu-
ents. See Response to Comments at 7. GSX does not dispute this
finding but contends that the Region is estopped from revisiting the
§ 3008(h) Order. See Petition for Review at 9. It is well settled, how-
ever, that estoppel does not apply to the government on the same
terms as other litigants. Heckler v. Community Health Services of
Crawford County, Inc., 467 U.S. 51, 60 (1984). To succeed, a party
arguing for the application of estoppel against a government agency
must, in addition to establishing the traditional elements of estoppel,
show some affirmative misconduct. See Miller v. United States, 907
F.2d 80, 82-83 (8th Cir. 1990). In the present case, GSX has not
alleged, nor does the record on appeal indicate, that the Region en-
gaged in any misconduct warranting application of the doctrine of
estoppel. Although we agree that the Region should have been more
diligent in its initial review of the 1987 report, we conclude that
the record on appeal supports the Region’s determination. That is,
the presence of volatile organic constituents in the soil surrounding
SWMU #2 is sufficient to justify further investigation of this unit.
As the Region stated in its response to comments, although the
§ 3008(h) Order indicated that there were no visible signs of a release,
the units were not easily accessible and a reevaluation of the sam-
pling report provided by GSX indicated that some soil contamination
had occurred. Response to Comments at 7. Under the circumstances
we agree that further investigation is appropriate. Review is therefore
denied.

With regard to SWMU #4, however, because the record on appeal
is inconclusive as to whether or not a release has occurred or is
likely to have occurred, and because the Region itself has reached
conflicting results in this regard, the permit is remanded. On remand,
the Region is instructed to reexamine the permit’s requirement that
GSX conduct further investigation at SWMU #4 and, if appropriate,
delete this unit from the permit. In this connection, the Region may
want to consider providing GSX with the opportunity to demonstrate
(in accordance with Permit Condition II.C.4.)9 that any further inves-
tigation of this unit is unwarranted.

8Permit Condition II.C.4. requires the preparation and submission of an RFI
for certain units. If, however, the permittee can provide sufficient justification that
a release from a particular unit is not probable, that unit need not be included
in an RFI. See also Response to Comments at 8 (permittee must prepare an RFI
workplan or “provide the justification under Condition II.C.4. that a release is not
probable.”).

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458 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

4. Waste Analysis Plan
   Permit Condition IV.G.1. states:

The Permittee shall submit a draft waste analysis
plan (WAP) that will describe the specific step-by-
step procedures that the Permittee will follow, as
required pursuant to 40 CFR § 264.13(b), to analyze
incoming shipments and on-site treatment of hazard-
ous waste within sixty (60) days of the effective date
of the permit. The WAP shall be developed to include
an algorithm approach to describing the waste analy-
sis procedures that is capable of being followed and
implemented by one who is not familiar with the
Permittee’s waste analysis procedures. The WAP
must include a description of the procedures required
to comply with Conditions IV.G.2., IV.G.4., and
IV.G.5. of this permit, as required pursuant to 40
CFR § 268.7. The final WAP shall be submitted to
EPA within sixty (60) days of receipt of EPA com-
ments on the draft plan.

GSX contends that this provision is improper for three reasons. These
are: (1) by failing to specify the requirements for an adequate draft
WAP, the permit is unconstitutionally vague; (2) this lack of specific-
ity in the WAP provision violates the Agency’s own established stand-
ards for due process; and (3) because the required provisions of the
WAP are unknown at the time of permit issuance, the Agency must
use the formal modification procedures at 40 C.F.R. Part 270, Subpart
D before making the WAP part of the permit. For the following
reasons, we agree with the Region that none of these arguments
justifies review.

First, we reject GSX’s argument that the permit is unconsti-
tutionally vague. The permit provides adequate notice of the require-
ments for the WAP. See, e.g., Permit Conditions IV.G.2.-IV.G.5. &
Appendix D. In addition, the permit indicates that the WAP must
comply with the applicable Federal regulations (40 C.F.R.
§§ 264.13(b), 268.7). 40 C.F.R. §264.13(b) provides, inter alia, that
a WAP must, at a minimum, specify:

(1) The parameters for which each hazardous waste

• • • will be analyzed and the rationale for the se-
      lection of these parameters * * *;

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GSX SERVICES OF SOUTH CAROLINA, INC. 459

(2) The test methods which will be used to test for
these parameters;

(3) The sampling method which will be used to obtain

a representative sample of the waste to be analyzed

• Oe Ok,

(4) The frequency with which the initial analysis of
the waste will be reviewed or repeated to ensure
that the analysis is accurate and up to date; and

(5) For off-site facilities, the waste analysis that haz-
ardous waste generators have agreed to supply.

We conclude that these provisions provide GSX with sufficient notice
of the conditions which must be included in the WAP. GSX’s argu-
ments to the contrary are therefore rejected.

Similarly, for the reasons stated above, the permit’s WAP re-
quirements do not lack the degree of specificity necessary to satisfy
the Agency's due process standards. That is, GSX has received ade-
quate notice of the provisions which must be included in the WAP
as well as an opportunity to comment on these provisions.

Finally, GSX contends that because the requirements of the final
WAP are unknown at the time of permit issuance, the plan submitted
under Permit Condition IV.G.1. must be incorporated into the permit
under the formal modification provisions of 40 C.F.R. §270.41. We
disagree. As noted above, GSX has been given sufficient notice of
the provisions which must be included in the final WAP. That is,
the permit makes clear that the plan must incorporate those provi-
sions required by the applicable regulations and the waste testing
provisions of the permit itself.

We also note that, as required by the regulations,!° GSX submit-
ted a copy of the waste analysis plan along with its Part B permit
application. This plan was incorporated into the final permit as Ap-
pendix D. Additional waste testing requirements are included in the
body of the permit itself. See Permit Condition IV. The Region noted,
however, that the waste analysis provisions submitted with GSX’s
Part B application “were presented throughout various sections of
the application.” Response to Comments at 17. Given the complexities
of analyzing a highly variable waste stream, the Region determined

10 See 40 C.F.R. § 270.14(b)(3); 40 C.F.R. § 264.13 comment.

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460 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

that GSX should revise the plan to “establish step-by-step sampling
and analytical procedures in a single document.” Id. According to
the Region, such revisions “will better enable the Permittee’s staff
to follow the approved procedures and will facilitate Agency oversight
during compliance inspections.” Id. Thus, it does not appear that
GSX will be required to make substantive changes to the permit’s
existing waste analysis requirements. Rather, the revised plan will
simply consolidate and clarify GSX’s existing obligations. Where, as
here, the revised plan is only a codification of existing permit require-
ments, we reject the argument that a permit modification will be
required to incorporate the revised plan.

5. Testing of Off-site Generated Waste

GSX argues that Permit Conditions IV.G.2. and IV.G.4.11 are
“unreasonable, unnecessary and contrary to the intent of the Agency’s
own regulations.” Specifically, GSX contends that these provisions
improperly require it to test all off-site generated waste treated on-
site prior to disposal. Petition for Review at 13. We disagree.

GSX has proposed the following procedures. In general, GSX
proposes to take the information submitted by the generator in a
Waste Analysis Request Form, to evaluate the information against
a representative sample of the waste, and to develop “fingerprint”
criteria which will characterize the waste and help GSX develop
an appropriate treatment process. The fingerprint would then be used
to determine if later waste shipments conform to the authorized
waste. GSX proposes to test only a sample of the treatment residue
to determine if it would meet the treatment standards of 40 C.F.R.

11 Permit Condition IV.G.2. provides:
To assure that wastes or treatment residues are in compliance
with applicable treatment standards set forth in 40 CFR Part
268 Subpart D and all applicable prohibitions set forth in 40
CFR § 268.32 or in RCRA Section 3004(d), the Permittee shall
obtain waste analysis data from off-site generated hazardous
wastes as specified in the Waste Analysis Plan (APPENDIX D)
and carry out the confirmatory testing program specified herein.

Permit Condition IV.G.4. provides:

For off-site generated wastes treated by the permittee to meet
applicable treatment standards set forth in 40 CFR Part 268 Sub-
part D, or applicable prohibitions set forth in 40 CFR § 268.32,
or in RCRA Section 3004(d), the permittee shall test every batch
of treated waste prior to landfill disposal. The test results of
each treated batch, including test results for batch treatment that
failed to meet a treatment standard, shall be maintained in the
facility operating record required under Condition I.D.9.b.

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GSX SERVICES OF SOUTH CAROLINA, INC. 461

§268. Future waste shipments would then be treated according to
a predetermined process and the treatment residue periodically test-
ed. Waste shipments would be tested only semi-annually. GSX con-
tends that it need not test all future shipments “because the finger-
print analysis assures that the composition of the waste is consistent
and Permittee’s pre-determined treatment procedures assure that the
treatment is consistent.” Petition for Review at 14. Thus, according
to GSX, the requirement that it test all wastes treated on-site is
unnecessary. GSX also contends that, in light of this “fingerprint”
analysis, Permit Condition IV.G.2.a., which requires that the permit-
tee test one representative sample of waste from every one hundred
vehicles delivering hazardous waste to the facility which is mani-
fested as meeting the Part 268 Subpart D treatment standards with-
out further treatment, is arbitrary and unnecessary.

Determinations regarding the frequency and types of testing at
land disposal facilities are established on a site-by-site basis and
are best resolved at the Regional level. See 55 Fed. Reg. 22,669
(June 1, 1990) (frequency of testing is best determined on a case-
by-case basis).12 Absent evidence that such determinations are clearly
erroneous or involve important policy questions, the Board will not
ordinarily grant review. In the present case, the Region has concluded
that the “fingerprint” analytical procedure does not ensure that vari-
ations in the chemical content or concentrations of a particular waste
stream will be properly taken into account. Such variation, the Region
contends, could result in a failure to meet the treatment standards
of 40 C.F.R. § 268.13 As the Region stated in its Response to Com-
ments:

The Agency believes that to ensure compliance with
40 CFR §268 Subpart D, the Permittee must test
all on-site treated waste for a sufficient period to
demonstrate the consistency of the treatment proc-
ess. Testing of each waste shipment treated by the

12The D.C. Circuit has recently upheld the Agency's authority to require corrobora-
tive testing on a case-by-case basis. See Chemical Waste Management Inc. v. EPA,
35 ERC 1329, 1355 (D.C. Cir. 1992).

13We note that the Region has indicated that GSX will only be required to
test all on-site treated waste “for a sufficient period to demonstrate the consistency
of the treatment process.” Response to Comments at 18. Moreover, the Region states
that “once the Petitioner develops a sufficient data base to demonstrate that the
treatment process for a particular waste stream consistently meets the §268 treatment
standards, the Region will consider a request by the Petitioner for a less frequent
testing schedule of that waste stream.” Region’s Response at 17; Response to Com-
ments at 18-19.

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462 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Permittee must continue until such time that the
Permittee has developed a sufficient data base to
demonstrate that the treatment of a specific waste
stream consistently yields treated wastes that meet
the treatment standards.

Response to Comments at 18-19. Nothing in the Petition for Review
or in the record on appeal convinces us that this determination was
clearly erroneous or otherwise warrants review. In addition, we agree
with the Region’s determination that it is appropriate to test every
100th vehicle containing wastes which are manifested as meeting
the Part 268 Subpart D treatment standards without further treat-
ment prior to disposal. The Region reasoned that such confirmatory
testing “is necessary for identifying potential problematic waste
streams and/or generators that submit erroneous certifications.” Re-
sponse to Comments at 21. Again, nothing in the Petition for Review
or in the record on appeal convinces us that this determination was
clearly erroneous or otherwise warrants review.

Similarly, we find no reason to review a provision in Permit
Condition IV.G.3. requiring GSX to notify the Region of any discrep-
ancies between the certification submitted by the generator and the
confirmatory testing performed by GSX. See 40 C.F.R. §268.7(a)(2)
(requiring the generator to certify that restricted waste can be land
disposed without further treatment). The Region included this condi-
tion under the authority of the RCRA omnibus provision, § 3005(c)(3).
See 42 U.S.C. §6925(c)(3) (“Each permit issued under this section
shall contain such terms and conditions as the Administrator (or
the State) determines necessary to protect human health and the
environment.”); 40 C.F.R. §270.32(b)(2). GSX contends that the regu-
lations do not require such reporting and, because GSX already re-
jects wastes that do not conform to its “fingerprint” analysis, the
reporting requirement does nothing to protect human health and
the environment. As the Region stated in its Response to Comments,
however, this condition was included to:

[E]nsure that the Agency is kept informed of the
occurrence of erroneous certifications. Such notifica-
tions will assist the Agency in taking the necessary
actions to ensure that hazardous waste disposed in
land units meets the 40 CFR Part 268 concentration
levels that have been determined protective of
human health and the environment.

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GSX SERVICES OF SOUTH CAROLINA, INC. 463

Response to Comments at 23. We find no reason to review this
determination. We note that the regulations require owners or opera-
tors to report discrepancies on the manifest supplied by the generator
if such discrepancies are not resolved within 15 days. See 40 C.F.R.
§ 264.72. Ensuring the integrity of generator certifications at a large
facility which accepts wastes from different generators will certainly
help ensure protection of public health and the environment, by help-
ing the Region identify those generators that are not properly testing
and disposing of their hazardous wastes. Accordingly, we find nothing
unreasonable in this case in extending this requirement to discrep-
ancies in the generator certification.

6. Exposure Information

GSX objects to a provision in Permit Condition V requiring it
to provide “any exposure information necessary to update the Expo-
sure Information Report” submitted by GSX as part of its Part B
permit application. As authority for this provision, the Region relies
on RCRA §3019(a), 42 U.S.C.A. §6939a(a). That section provides,
in part:

[EJach application for a final determination regarding
a permit under section 6925(c) of this title for a
landfill or surface impoundment shall be accom-
panied by information reasonably ascertainable by
the owner or operator on the potential for the public
to be exposed to hazardous wastes or hazardous con-
stituents through releases related to the unit.

GSX argues that nothing in section 3019 requires a permittee to
update the exposure information report during the permit term and
the requirement should therefore be removed from the permit. We
agree. The Region has not identified any legal basis for this permit
provision and we can find none. Neither RCRA nor its implementing
regulations requires updates of the exposure assessments submitted
with the permit application. Moreover, the Region has failed to con-
vince us of the need for such a provision under RCRA’s omnibus
authority.14 Thus, on remand, the Region is instructed to remove
this permit provision.

14The Region has adequate authority to deal with potentially dangerous exposures
to humans and the environment. The permit already requires GSX to report and
investigate releases or likely releases which could pose a danger to the public. For
example, the permit’s corrective action provisions require GSX to investigate releases

from SWMU’s. See Permit Condition II. Moreover, GSX is required to report “any
Continued

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464 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

7. Obligation to Permit Land Disposal Units

GSX contends that the Region’s failure to issue a permit for
certain units was arbitrary and capricious and a violation of the
Region’s “non-discretionary duty” under RCRA § 3005(c)(2)15 to issue
permits for land disposal facilities by November 8, 1988. Comments
on Draft Permit at 50-51. These units were identified by GSX as
interim leachate storage tanks, interim leachate skid tanks, drum
storage, and secondary containment tanks. GSX contends that the
operation of these units is necessary in order to comply with the
HSWA Minimum Technology Requirements (MTR)16 performance
standards specified in Part VI of the HSWA permit and that it
is “improper for the Region to mandate MTRs and then deny Permit-
tee the means to meet those requirements.” Petition for Review at

20. We disagree.

First, we reject GSX’s assertion that RCRA § 3005(c)(2) requires
the Region to include the above-mentioned units in the HSWA permit.
The regulations clearly give the Region the authority to issue a per-
mit for certain units and deny a permit for others. See 40 C.F.R.
§ 270.1(c)(4) (“EPA may issue or deny a permit for one or more units
at a facility without simultaneously issuing or denying a permit to
all units at the facility.”). Second, the Region is only required to
issue a permit with regard to those units regulated by HSWA and
which meet the applicable statutory and regulatory requirements.
In the present case, the Region determined that operation of the
above-mentioned units is not necessary in order to comply with
HSWA or the permit’s MTR requirements. Based on the description
of these units by the Region and GSX we agree with the Region’s
determination. Finally, the Region notes that any leachate collected
in these units can be stored on a 90-day basis and then either treated
on-site or shipped off-site. A permit would not therefore be necessary.
See 40 C.F.R. §270.1(c)(2). If, in the future, it becomes clear that
GSX needs a permit or permits to operate these units, it may seek

imminent or existing hazard to public health or the environment from any release
of hazardous waste or hazardous constituents from a solid waste management unit.”
Permit Condition II.F.1.
15 RCRA § 3005(c)(2)(Ai), 42 U.S.C. §6925(c)(2)(A)(i), provides:
Not later than the date four years after November 8, 1984, in
the case of each application under this subsection for a permit
for a land disposal facility which was submitted before such date,
the Administrator shall issue a final permit pursuant to such
application or issue a final denial of such application.
16 See RCRA § 3004(u), 42 U.S.C.A. §6924(u) (requiring that hazardous waste land-
fills be designed to incorporate or exceed certain minimum technology requirements).

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GSX SERVICES OF SOUTH CAROLINA, INC. 465

an appropriate permit modification at that time. On the record before
us, however, GSX has not demonstrated any error or exercise of
discretion warranting review.

8. Minimum Technology Requirements—Part VI of HSWA Permit

GSX objects to various provisions of Part VI of the HSWA permit
which implements the minimum technology requirements of RCRA
§ 3004(u). Specifically, GSX objects to provisions of Part VI.C. (Operat-
ing and Maintenance Requirements) establishing operating and main-
tenance procedures necessary to ensure that the leachate collection/
detection systems are functioning in accordance with RCRA and its
implementing regulations. GSX also objects to certain provisions of
Part VI.D. (Reporting) establishing requirements for reporting instal-
lation design and quality control procedures of new landfill cells and
for reporting the results of leachate collection/detection system mon-
itoring.

On January 29, 1992, the Agency issued new rules addressing
“Liners and Leak Detection Systems for Hazardous Waste Land Dis-
posal Units.” 57 Fed. Reg. 3462. Because all of GSX’s objections
to Part VI of the permit turn in some measure on these new rules,
the permit is remanded so that the Region can reevaluate the dis-
puted conditions in light of these new requirements, and, where ap-
propriate, modify the permit accordingly. The Region must also re-
open the public comment period to allow interested parties an oppor-
tunity to comment on the application of these new landfill and leak
detection rules to GSX’s facility.17

9. Location Standards

GSX objects to the inclusion of three conditions in Part VII of
the final permit (regarding facility location requirements) which were
not present in the draft permit. Specifically, the final permit, relying
on the Agency’s draft facility location standards,18 requires that GSX

17We note that the new rule amends 40 C.F.R. §270.4 to require owners and
operators to apply for a permit modification to meet the standards of this new rule.
In addition, the new rule expressly provides for a reevaluation of all pending and
issued permits where construction has not begun. See 57 Fed. Reg. 3464-65 (“Owners
and operators at permitted facilities may not begin construction of units subject to
today’s requirements until the permitting agency has approved a permit modification.”).

18 HSWA requires the Agency to issue regulations which “specify criteria for the
acceptable location of new and existing treatment, storage, and disposal facilities as

necessary to protect human health and the environment.” RCRA §3004(u)(7), 42
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466 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

submit three reports within 90 days of the effective date of the
permit demonstrating that: (1) the design and operation of the landfill
will ensure the protection of adjacent wetlands prior to and beyond
the post-closure care period; (2) an adequate buffer zone has been
established to mitigate, contain, or eliminate any groundwater re-
leases within the facility's property boundary; and (3) releases of
hazardous constituents into the groundwater can be remediated and
that the 40 C.F.R. Subpart F corrective action requirements can
be achieved. Permit Conditions VII.A—C. The Region included these
provisions in the final permit under the authority of the RCRA omni-
bus provision. See RCRA §3005(c)(3), 42 U.S.C. §6925(c)(3) (“Each
permit issued under this section shall contain such terms and condi-
tions as the Administrator (or the State) determines necessary to
protect human health and the environment.”).

In its petition for review, GSX contends: (1) the facility meets
all existing location standards under 40 C.F.R. §264.18 and that
the Region therefore lacks the regulatory authority to impose addi-
tional location standards; (2) the Region improperly relied on the
omnibus provision; (3) the 90-day period for complying with the per-
mit’s facility location standards conflicts with the requirements of
RCRA § 3010(b); 29 and (4) the inclusion of facility location conditions
in the final permit that were not in the draft permit constitutes
an abuse of discretion and deprives GSX of its constitutional right
of due process. We conclude that the location conditions must be
remanded for public comment.

RCRA § 3004(u)(7) requires the Administrator to “specify criteria
for the acceptable location of new and existing treatment, storage,
and disposal facilities as necessary to protect human health and
the environment.” Regulations implementing this requirement have
not yet been promulgated and, as the Region concedes, GSX is cur-
rently in compliance with all existing location standards. Nonetheless,
we agree that the Region may, in appropriate circumstances, require
additional conditions to ensure protection of the environment under

U.S.C.A. §6924(0)(7). Location criteria in response to HSWA have not yet been issued
in final form.

19 42 U.S.C.A. § 6930(b). That section provides, in part:

The regulations under this subchapter respecting requirements
applicable to the generation, transportation, treatment, storage,
or disposal of hazardous waste (including requirements respecting
permits for such treatment, storage or disposal) shall take effect
on the date six months after the date of promulgation thereof

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GSX SERVICES OF SOUTH CAROLINA, INC. 467

the omnibus provision.2° However, the Region failed to provide the
public or the permittee with any opportunity to comment on the
final permit’s location standards. Ordinarily, the decision to reopen
the public comment period on a permit should be left to the sound
discretion of the Region. See 40 C.F.R. § 124.14(b). Given the signifi-
cance of the addition of these location standards, however, we find
that reopening the record to provide for comment is appropriate.
On remand, the Region must publicly notice the location conditions
and allow GSX and other interested parties the opportunity to submit
comments. We express no opinion on the appropriateness of the per-
mit’s location standards.

10. Effective Date of Permit

GSX has also raised several objections to the Region’s initial
determination regarding the effective date of the permit. Apparently,
the Region determined that the three-year permit term would begin
to run on September 1, 1989, regardless of the filing of the petition
for review. In its Response, however, the Region indicates that it
is in agreement with GSX that the entire permit is stayed pending
a decision by the Board. The issue is therefore moot.

III. CONCLUSION

The permit is remanded and the Region is directed to reopen
the permit proceedings for the purposes mentioned above.21 An ap-
peal of the Region’s determination on remand will be required to
exhaust administrative remedies. On the other issues raised by GSX,
review is denied for the reasons set forth above.

So ordered.

20 See In re Ecolotec, Inc., RCRA Appeal No. 87-14, unpub. op at 3-4 (Adm’r,
Dec. 14, 1988) (Region has discretion under the omnibus provision to impose permit
terms beyond those required by the rules).

21 Although 40 C.F.R. § 124.19 contemplates that additional briefing typically will
be submitted upon a grant of a petition for review, a direct remand without additional
submissions is appropriate where, as here, it does not appear as though further
briefs on appeal would shed light on the issues addressed on remand. See, e.g., In
re: Chemical Waste Management, Inc., RCRA Appeal No. 87-12, at 5 (Adm’r, May
27, 1988).

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