Chevron Chemical Co. (Richmond, CA Facility)

Plain-English summary

EPA Region IX issued Chevron Chemical Company a RCRA permit for a hazardous-waste incineration, storage, and treatment facility in Richmond, California. Chevron, the Pipe Trades Council of Northern California, and Citizens for a Better Environment raised twelve issues. The Board remanded for the Region to decide whether Chevron's supplemental information should be added to the record and whether permit limits should be revised, to explain why it selected a cancer-risk level of 10^-6 rather than the levels identified in EPA guidance and proposed rules, and to reconsider whether certain confidential business information could be released under the special rules for information obtained under the Solid Waste Disposal Act. It denied all other proposed grounds for review.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 2.208, 2.305, 124.10, 124.19, and 270.42; 42 U.S.C. § 6901
• Outcome: Mixed. Limited permit issues were remanded to EPA Region IX, while the remaining grounds for review were denied.
• Key point: The Board may remand a permit proceeding when the Region must evaluate substantial new information, explain a departure from relevant risk guidance, or reconsider disclosure of protected information.

Full text (EPA EAB public release)

18 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF CHEVRON CHEMICAL CO.
(RICHMOND, CA FACILITY)

RCRA Appeal No. 90-15

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided April 27, 1992

Syllabus

This case involves a petition for review of a permit issued by the United States
Environmental Protection Agency, Region IX, under the Resource Conservation and
Recovery Act (RCRA). The permit authorizes Chevron Chemical Company to operate
a hazardous waste incineration facility in Richmond, California. Petitioners (Chevron,
the Pipe Trades Council of Northern California (PTC), and Citizens for a Better
Environment) raise a total of twelve issues on appeal.

After filing its appeal, Chevron filed a motion requesting consideration of addi-
tional information. Chevron contends that this information will correct what it charac-
terizes as erroneous factual assumptions made by the Region.

Held: The proceeding is remanded and the Region is instructed to determine
whether the record should be supplemented with the new information submitted by
Chevron and, if so, whether the permit should be revised. Given the nature and
volume of this information, it would not be appropriate for the Board to attempt
to determine its significance for the first time on appeal. On remand, the Region
is also instructed to address two arguments raised by Chevron and PTC respectively.
First, the Region must clarify its rationale for selecting a cancer risk level of 10^-6
rather than the 10^-5 level recommended by an EPA guidance document cited by
Chevron and a proposed EPA regulation. Second, the Region must consider whether
information submitted by Chevron that was classified as confidential business informa-
tion (CBI) should nevertheless be released to the public pursuant to the “Special
rules governing certain information obtained under the Solid Waste Disposal Act,”
40 C.F.R. § 2.305.

All other proposed grounds for relief raised by the several petitioners have been
considered and rejected for the reasons stated in the Region's response.

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CHEVRON CHEMICAL CO. (RICHMOND, CA FACILITY) 19

Before Environmental Appeals Judges Ronald L.
McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion by Judge McCallum:

On May 8, 1990, U.S. EPA Region IX issued a permit under
the Resource Conservation and Recovery Act (RCRA), as amended,
42 U.S.C.A. §§ 6901-6992k, authorizing Chevron Chemical Company
to operate a hazardous waste incineration, storage, and treatment
facility located in Richmond, California.¹ Three appeals have been
filed under 40 C.F.R. § 124.19 by Chevron, the Pipe Trades Council
of Northern California (PTC), and Citizens for a Better Environment
(CBE) in conjunction with the West County Toxics Coalition. As re-
quested by the Agency's Judicial Officer,² the Region filed a response
to the petitions dated November 30, 1990 (Region's Response).

The parties raise a total of twelve issues for consideration on
appeal.³ Chevron argues that the permit improperly requires it to
repeat the entire trial burn procedure as part of any reapplication
following expiration of the permit in 1995; that the permit's limita-
tions on the total amount of wastes entering the incinerator are
overly restrictive; and that the mass feed rates for certain metals
entering the incinerator are overly restrictive and, in some cases,
technically impossible to demonstrate. PTC makes the following argu-
ments: the Region improperly withheld information from the public
regarding wastes at the facility on the ground that such information
is confidential; the permit's metal feed rates are higher than those
measured in the trial burn; the risks to sensitive receptors in the
community, such as children and the elderly, were not adequately
evaluated; the permit should contain a limit on zinc emissions; trial
burn measurements of the metal feed and emissions rates were inac-
curate; and the Region's selection of Principle Organic Hazardous
Constituents (POHCs) regulated by the permit was flawed. PTC and
CBE both argue that the permit improperly allows Chevron to burn

¹All wastes stored or treated at the facility are generated on-site by the production,
formulation or packaging of pesticides or other chemical products.

²At 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).

³In its appeal, Chevron raised several additional issues regarding various incon-
sistencies and errors in the final permit. Chevron and the Region have agreed to
resolve these matters through a Class 1 permit modification under 40 C.F.R. § 270.42.
These issues have therefore been rendered moot and need not be addressed in today's
order.

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20 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

wastes not specified in the permit and that the permit's waste mini-
mization provisions are inadequate. Finally, CBE argues that the
Region failed to consider the cumulative risk from the facility as
a whole.

On July 3, 1991, Chevron filed a motion requesting permission
to supplement the record to correct what it characterizes as erroneous
factual assumptions made by the Region in writing the permit and
in responding to the petitions for review. This supplemental informa-
tion was submitted along with the motion. Specifically, Chevron seeks
to present additional information regarding the Region's decision:
1) to limit the total amount of wastes entering the incinerator to
300,000 tons for the five-year permit term and to 75,000 annually;⁴
and 2) to include mass feed rates for certain metals (arsenic, beryl-
lium, cadmium, and chromium) more restrictive than those in the
draft permit.⁵ Chevron contends that the Region's decision on these
issues was arbitrary and lacked any technological or health-based
justification.

The Region has not submitted a substantive response to the
new information or otherwise expressed its views as to its signifi-
cance. Although Region IX now states that the appeal should be
resolved based on the existing administrative record,⁶ at a June 20,
1991 meeting, the Region purportedly encouraged Chevron to file
this supplemental information,⁷ thereby arguably suggesting that the
Region views the new material as relevant to the present proceeding.

Given the nature and volume of the information submitted by
Chevron,⁸ it would not be appropriate to attempt to discern its signifi-

⁴See Final Permit Condition I.K.4. These limits were added in response to public
comments on the draft permit.

⁵Final Permit Condition IV.C.16, provides:

The mass feed rates of toxic metals to the incinerator * * * shall
not exceed:

Arsenic: .0410 (lbs./hr.)
Beryllium: .0008 (lbs./hr.)
Cadmium: .0006 (lbs./hr.)
Chromium: .0233 (lbs./hr.)

⁶See Letter from Laurie Williams, Assistant Regional Counsel, to David R. Heck-
ler, Assistant Judicial Officer (November 18, 1991).

⁷See Letter from Margaret Rosegay, Esq., Counsel for Chevron, to Bessie Hammiel,
U.S. EPA Hearing Clerk (July 3, 1991).

⁸In its Supplemental Filing, Chevron presents information alleging that the Re-
gion, in limiting the total waste feed to the incinerator to 300,000 tons for the permit's
five-year term (75,000 tons annually), may have failed to appreciate the dynamic
nature of the specialty chemical market which, according to Chevron, requires that
a manufacturer be able to respond to changing market conditions within a three

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CHEVRON CHEMICAL CO. (RICHMOND, CA FACILITY) 21

cance for the first time on appeal. The permitting rules contemplate
that the Region will initially consider and analyze information rel-
evant to the final permit determination.⁹ Immediate consideration
of the newly submitted information on appeal would circumvent that
orderly process, forcing the Board to either forgo the Region's
views, an obviously undesirable consequence, or to solicit them sepa-
rately (along with those of other interested parties), thereby running
the risk of transforming the appeal process into a full fledged public
comment process, a matter best left to the Region in the first in-
stance. Indeed, the Region itself has suggested that if the additional
evidence is to be considered, the affected permit issues should be
remanded to the Region for further consideration.¹⁰

To ensure adequate consideration of Chevron's request, this pro-
ceeding will be remanded for additional limited proceedings. The Re-
gion is directed to consider whether, under the circumstances, the
record should be supplemented with the additional information sup-
plied by Chevron. If the Region determines that this information
should become part of the administrative record, it should solicit
public comment thereon. The Region should then determine whether
the permit's current limitation on the amount of wastes entering
the incinerator and the mass feed rates for the four metals mentioned
above should be revised.

On remand, the Region must also clarify its rationale for select-
ing a cancer risk level of 1x10^-6 rather than the 1x10^-5 level rec-
ommended by an EPA guidance document cited by Chevron as well
as the proposed rules for owners and operators of hazardous waste
incinerators. See Guidance on Metals and Hydrogen Chloride Controls
for Hazardous Waste Incinerators, Volume IV of the Hazardous
Waste Incinerator Guidance Series, at Appendix I-13 (August 1989);
Standards for Owners and Operators of Hazardous Waste Inciner-
ators (Proposed Rule), 55 Fed. Reg. 17,862, 17,874 (April 27, 1990).
In its response, the Region correctly notes that there is nothing

⁹See generally 40 C.F.R. Part 124, Subpart A.

¹⁰See Letter from Laurie Williams, Assistant Regional Counsel, to David R. Heck-
ler, Assistant Judicial Officer (November 18, 1991).

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22 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

that requires it to choose a risk level of 10^-5.¹¹ Nevertheless, this
explanation does not provide a very satisfying basis for dispensing
with the issue Chevron raises. Accordingly, the Region must provide
a more reasoned justification for proposing a risk level that differs
from the level specified in the EPA guidance and the proposed
rules.¹²

Finally, the Region must reconsider its refusal to release certain
information classified as confidential business information (CBI). See
40 C.F.R. § 2.208 (substantive criteria for use in confidentiality deter-
minations). PTC contends that the Region's failure to release this
information denied PTC and other interested parties any meaningful
opportunity to comment on the permit. In its response, the Region
contends, inter alia, that once the CBI determination was made,
it had no discretion to release the disputed information. The Region,
however, fails to consider the “Special rules governing certain infor-
mation obtained under the Solid Waste Disposal Act,” 40 C.F.R.
§ 2.305, which allow the release of CBI to the public under certain
circumstances. On remand, the Region shall consider whether the
special rules apply and, if so, whether the disputed information
should be released to the public. The Region's determination on this
issue shall constitute final Agency action. If the Region determines
that the CBI was properly withheld from the public, PTC may pursue
all available avenues of relief in the appropriate federal court.

All other proposed grounds for review raised by the several peti-
tioners have been considered and rejected for the reasons contained
in the Region's response. Under the rules governing this proceeding,
there is no appeal as of right from the Region's permit decision.
Ordinarily, a RCRA permit determination 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(a); In re Chemical Waste
Management Inc., RCRA Appeal No. 87-12, at 2 (May 27, 1988);

¹¹The Region also notes that a risk level of 10^-6 is “consistent * * * with the
clean-up level sought at most Superfund Sites which are remediated pursuant to
CERCLA, 42 U.S.C. § 9601 et seq. and the National Contingency Plan, 40 C.F.R.
§ 300.430(e)(2)(i)(A)(ii).” Region's Response at 15.

¹²The Board notes for the parties consideration that the four metals at issue
here are listed as hazardous air pollutants under section 112(b)(1) of the Clean Air Act,
as amended, 42 U.S.C. § 7412(b)(1). Under section 112(f)(2)(A) of the Clean Air Act,
42 U.S.C. § 7412(f)(2)(A), whenever it is determined that technology-based emission
standards promulgated under section 112(d) for sources of pollutants classified as
known, probable, or possible carcinogens, do not reduce lifetime cancer risks to the
maximum exposed individual to less than “one in one million,” the Administrator
is authorized to promulgate health-based standards for such sources.

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CHEVRON CHEMICAL CO. (RICHMOND, CA FACILITY) 23

In re Highway 36 Land Development Co., RCRA Appeal No. 87-
5, at 2 (September 2, 1987). The preamble to the regulations states
that “this power of review should only be sparingly exercised” and
that “most permit conditions should be finally determined at the
Regional level * * *.” 45 Fed. Reg. 33,412 (May 19, 1980). The bur-
den of demonstrating that review is warranted is on the Petitioners.
Petitioners have failed to meet this burden with respect to the other
proposed grounds for review.

CONCLUSION

This proceeding is remanded and the Region is directed to reopen
the permit proceedings for the limited purposes mentioned above.
The Region shall give public notice of this decision under 40 C.F.R.
§ 124.10.

So ordered.

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