Allied-Signal, Inc. (Frankford Plant)

Plain-English summary

Allied-Signal operated a phenol and acetone production facility in Philadelphia, Pennsylvania, under a RCRA permit issued by EPA Region III. The company challenged the permit's dispute-resolution process, a requirement to notify owners and residents of overlying property about groundwater contamination, and several wording issues in permit conditions. The Environmental Appeals Board held that the dispute-resolution provision gave Allied-Signal sufficient process and that the other wording challenges did not warrant review. It remanded the groundwater-notification condition because the Region had not adequately explained why that requirement was appropriate for this facility and directed further proceedings with the condition stayed.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 6901, 6912, 6924, 6925, and 6972; 40 C.F.R. §§ 124.10, 124.19, 264.101, 264.520, 270.30, 270.32, 270.41, 270.42, and 270.82
• Outcome: Mixed. The notification condition was remanded and stayed. Review was denied on the other two issues.
• Key point: A proposed Subpart S rule could guide permit drafting, but the Region still had to provide a permit-specific justification for the groundwater-notification condition.

Full text (EPA EAB public release)

748 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF ALLIED-SIGNAL, INC.
(FRANKFORD PLANT)

RCRA Appeal No. 90--27

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided July 29, 1993

Syllabus

The permittee, Allied-Signal, Inc., seeks review of several provisions of a permit
issued to it by EPA Region III pursuant to the Hazardous and Solid Waste Amend-
ments (HSWA) of the Resource Conservation and Recovery Act (RCRA). First, the
permittee alleges that the permit’s dispute resolution provision denies it due process
because the provision allows the Region to impose additional requirements without
allowing Allied-Signal a meaningful opportunity to challenge such requirements before
they are imposed. Second, the permittee contends that the permit condition requiring
notification of groundwater contamination to owners and residents of overlying prop-
erty is unwarranted and unduly burdensome. Third, the permittee asserts that the
Region abused its discretion by failing to change language in various permit provisions
to reflect the Region’s responses to the permittee’s comments on the draft permit.

Held: (1) The dispute resolution provision of the permit provides ample oppor-
tunity for the permittee to contest any additional new requirements that may be
imposed upon it during the course of the corrective action process, including any
additional new requirements imposed as a result of the Region’s review and approval
of the permittee’s interim submissions. Therefore, review of this objection to the permit
is denied. (Requirements that are imposed by the Region during the corrective action
process but which merely restate existing permit requirements are enforceable in
accordance with their original terms and implementation of those requirements may
not be postponed while the dispute resolution process is underway.) (2) The ground-
water notification provision in the permit was adapted from the Agency’s Subpart
S proposal, see 55 Fed. Reg. 30,798 (July 27, 1990), which includes a notice require-
ment almost identical to the one at issue here. As a proposed regulation, the Subpart
S proposal does not have the force and effect of law. Although the Agency is free
to draw upon language in the proposal when writing the terms of an individual
permit, the proposal is non-binding, and “open to attack in any particular case.”
See General Motors Corporation, Delco Moraine Division, et al., RCRA Appeal Nos.
90-24, 90-25, at 11, n. 15 (EAB, Nov. 6, 1992); In re Envirosafe Services of Idaho,
Inc., RCRA Appeal No. 88-41, at 6 (Adm’r, Apr. 3, 1990) (citing Panhandle Producers
and Royalty Owners Ass'n v. Economic Regulator Admin., 822 F.2d 1106, 1110-1111
(D.C. Cir. 1987)); see also Simmons v. ICC, 757 F.2d 296, 300 (D.C. Cir. 1985) (“When
an Agency promulgates a policy without the formalities required to make it a valid
rule, it must * * * in subsequent adjudications, ‘be prepared to support the policy

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ALLIED-SIGNAL, INC, (FRANKFORD PLANT) 749

just as if the policy statement had never been issued.” (citation omitted)). In this
case, the Environmental Appeals Board is not persuaded that the Region has per-
formed a sufficiently thorough permit-specific analysis as to why this particular notice
requirement is appropriate. See In re Sandoz Pharmaceuticals Corporation, RCRA
Appeal No. 91-14, at 11 (EAB, July 9, 1992) (“Sandoz is correct that corrective action
requirements should be tailored to site-specific conditions at the facility.”), citing In
re American Cyanamid Company, RCRA Appeal No. 89-8, at 7 (Adm’r, Aug. 5, 1991)
(“EPA guidance documents emphasize the importance of tailoring RCRA corrective
action requirements to site-specific conditions in order to avoid imposing unnecessary
or inappropriate burdens upon the permittee.”). Therefore, the Board is remanding
the permit to the Region for further consideration, as specified in the decision. (3)
For the reasons stated in the decision, the concerns expressed by the permittee over
proposed permit conditions and other matters which the permittee believes the Region
agreed to, but did not, change in the final permit are either unfounded or, based
on clarifications of interpretation by the Region, no longer merit further consideration.
Therefore, review of these concerns is not warranted.

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

Opinion of the Board by Judge McCallum:

Allied-Signal, Inc. has petitioned for review of a permit issued
by U.S. EPA Region III on September 28, 1990, pursuant to the
Resource Conservation and Recovery Act of 1976 (“RCRA”) as amend-
ed by the Hazardous and Solid Waste Amendments of 1984
(“HSWA”), 42 U.S.C. § 6901 et seq. Among other things, the permit
establishes corrective action requirements for Allied-Signal’s
Frankford Plant, a phenol and acetone production facility located
in Philadelphia, Pennsylvania.1

Under the rules that govern this proceeding, a RCRA permit
ordinarily will not be reviewed unless it is based on a clearly erro-
neous 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. The preamble to § 124.19 states that “this power
of review should be only sparingly exercised,” and that “most permit
conditions should be finally determined at the Regional level * * *.”
45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating
that review is warranted is on the petitioner. See In re Beazer East,
Inc. and Koppers Industries, Inc., RCRA Appeal No. 91-25, at 3
(EAB, Mar. 18, 1993).

1The entire RCRA permit issued to Allied-Signal consists of the portion issued
by Region III, which addresses the HSWA requirements, and the portion issued by
the Commonwealth of Pennsylvania, which addresses that portion of RCRA for which
Pennsylvania is authorized pursuant to RCRA § 3006(b).

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750 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Allied Signal maintains that review of this permit is warranted
on three grounds. First, Allied-Signal alleges that the permit’s dispute
resolution provision allows the Region to impose additional require-
ments without allowing Allied-Signal a meaningful opportunity to
challenge such requirements before they are imposed, and therefore
denies Allied-Signal due process. Second, Allied-Signal contends that
the permit condition requiring notification of groundwater contamina-
tion to owners and residents of overlying property is unwarranted
and unduly burdensome. Third, Allied-Signal asserts that the Region
abused its discretion by failing to change language in various permit
provisions to reflect the Region’s responses to Allied-Signal’s com-
ments on the draft permit. For the reasons stated below, we conclude
that the second ground for review raises legitimate concerns about
the notification provision of the permit such that the permit should
be remanded to the Region for further action. With respect to the
remaining two grounds for review, we are not persuaded that they
have any merit and, therefore, review is denied under § 124.19.

A. Dispute Resolution Provision

Over the course of the corrective action process, Allied-Signal’s
permit requires it to submit various interim submissions to the Re-
gion for approval. For example, the permit requires Allied-Signal
to submit a RCRA Facility Investigation (“RFI”) 2 workplan detailing
the investigations, tests, and other such matters that Allied-Signal
proposes to use to determine the extent and nature of any releases
from solid waste management units (“SWMUs”) and the need for
corrective measures. See Permit Condition II.B. The permit further
requires that upon approval of the RFI workplan, Allied-Signal shall
fulfill the requirements of the plan and thereafter submit a report
of the completed RFI work to the Region for approval. Id. The objec-
tive of the RFI report “shall be to ensure that the investigation
data are sufficient in quality * * * and quantity to describe the
nature and extent of contamination, potential threat to human health
and the environment, and to support the Corrective Measures Study.”
Permit Attachment C, at C-16. The relationship among the various
plans and reports are summarized by the Region in the following
manner:

2In general terms, the RFI is the portion of the corrective action process where
the permittee assesses releases previously identified by the Agency in the RCRA
Facility Assessment by characterizing the nature and extent of the release. See In
re General Motors Corp., RCRA Appeal Nos. 90-24, 90-25, at 7, n.9 (EAB, Nov.
6, 1992); In re American Cyanamid Co., RCRA Appeal No. 89-8, at 2, n.3 (Adm’r,
Aug. 5, 1991).

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The information required to be submitted to EPA
in the form of reports (e.g., the RFI and CMS Re-
ports) is based on “tasks” which are initially de-
scribed in the workplans for the studies on which
such reports are based (e.g., RFI Plan, CMS Plan).
These workplans are prepared by the permittee and
approved by EPA. These workplans describe, inter
alia, location of wells, sampling parameters, soil con-
ditions, surface water and sediment conditions, etc.
Once the workplans and accompanying schedules are
approved, the Permittee performs the specified tasks
and generates the Report (e.g., RFI Report, CMS Re-
port).

Response to Petition for Review at 3—4.

Upon the Region’s approval of a permittee’s plans and reports,
they become incorporated into the permit pursuant of permit condi-
tion I.C:

All plans, reports, schedules, and other submissions
required by the terms of this permit are, upon ap-
proval by the Regional Administrator, incorporated
into this Permit. Any noncompliance with such ap-
proved studies, schedules, plans, reports, or other
submissions shall be deemed noncompliance with
this Permit.

Thus, once incorporated into the permit, the various interim submis-
sions, like other permit provisions, become fully enforceable parts
of the permit.

Allied-Signal’s appeal focuses on the permit’s dispute resolution
provision, which establishes a procedure for resolving disputes over
whether a particular interim submission, such as the RFI workplan
or RFI report, should be approved by the Region and thus become
an enforceable permit condition. Before turning to Allied-Signal’s spe-
cific grievance with this provision, it will be useful to highlight some
of its salient features. The complete text of the provision appears
in the margin below.

3The dispute resolution provision provides as follows:

In the event of EPA disapproval in whole or in part of any submis-
sion requiring EPA approval, the Regional Administrator shall
specify any deficiencies in writing. The Permittee shall modify
the document to correct the deficiencies within thirty (30) days
from receipt of disapproval by the Regional Administrator. The

Continued

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752 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

As written, the dispute resolution provision contemplates two
possible scenarios following the Region’s disapproval of a permittee’s
interim submission. The first is uncontroversial and arises whenever
the permittee either agrees with the Region’s deficiency determina-
tion or decides not to contest it. In either case, the permittee must
submit a revised document to correct the deficiencies specified by
the Region within 30 days of the deficiency determination. Upon
timely submission of the revised document, the document becomes
incorporated into the permit as provided by permit condition I.C.
and is immediately enforceable. The formal permit modification provi-
sions in 40 C.F.R. §§ 270.41 and 270.42 do not come into play under
this scenario.

The second scenario is directly pertinent to the instant appeal.
It takes place whenever the permittee decides to contest the defi-
ciency determination. In that event, there begins a 45-day informal
dispute resolution process in which the permittee must submit, within
15 days of the deficiency determination, a statement of grounds for
taking exception to the determination. Following that, there is a
80-day period during which the permittee and the Region are ex-
pected to confer with each other to resolve their differences. If those
efforts are not successful by the end of the 30-day period, then the
permittee must revise the document in accordance with the Region’s
directions. Although at this point the revised document is implicitly
approved by the Region, and therefore would be subject to immediate
incorporation into the permit if permit condition I.C. were the sole
controlling consideration, the last sentence of the dispute resolution
provision indicates otherwise. It provides, in effect, that the revised
document will not become incorporated into the permit except in
accordance with the formal permit modification procedures specified

modified document shall be submitted to EPA in writing for re-
view. Should the Permittee take exception to all or part of EPA’s
disapproval, the Permittee shall submit to the Regional Adminis-
trator a written statement of grounds for the exception within
fifteen (15) days from receipt of EPA’s disapproval. Representa-
tives of EPA and the Permittee may confer in person or by tele-
phone in an attempt to resolve any disagreement. In the event
that resolution is not reached within forty-five (45) days from
receipt of disapproval by the Regional Administrator, the Permit-
tee shall revise the document as required by EPA. The Permittee,
upon submission of the revised document, shall state whether
or not he/she agrees in whole or in part with the revised docu-
ment. In the event of any disagreement, the permit shall be modi-
fied in accordance with 40 C.F.R. § 270.41 or 270.42 to incorporate
the Regional Administrator’s position on the matter in dispute.

Permit Condition I.D.

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ALLIED-SIGNAL, INC. (FRANKFORD PLANT) 753

in §§ 270.41 and 270.42.4 In other words, until those permit modifica-
tion procedures have run their course, the revised document is not
part of the permit and therefore is not immediately enforceable.

This latter aspect of the Allied-Signal dispute resolution provision
represents a marked departure from widely followed permitting prac-
tices at EPA, which generally do not afford the permittee any re-
course to the modification procedures set forth in §§ 270.41 and
270.42 whenever Regional permitting officials revise, or require revi-
sion of, interim submissions. See, e.g., In re General Electric Co.,
RCRA Appeal No. 91-7 (EAB, Apr. 13, 1993). Indeed, by reason
of previous decisions of this Board and the Administrator, In re
General Electric Co., supra, and In re W.R. Grace & Company, RCRA
Appeal No. 89-28 (Adm’r, March 25, 1991), it is clearly established
that the revision of an interim submission does not constitute a
permit modification for purposes of §§ 270.41 and 270.42. Rather,
incorporation of such a submission into the permit is in the nature
of action taken to implement preexisting permit obligations, and for
that reason does not represent a permit modification. Id.

The fact that a Region revises the interim submission
does not change this analysis. When the Region re-
vises an interim submission, it is exercising its au-
thority under the existing permit language to insure
that the contemplated studies and investigations are
adequate for selection of corrective remedies. The Re-
gion’s revisions are part of a process contemplated
in the original permit by which the general terms
of the original permit are made more specific. Thus,
when the Region makes such revisions, it is fulfilling
the terms of the permit, not changing them. * * *
[W]e conclude that Regional revisions to interim sub-
missions are not appropriately characterized as modi-
fications of the permit subject to the formal modifica-
tion procedures of Section 270.41 and Part 124.

In re General Electric Co., supra at 11-12 (footnotes omitted).

4The procedures specified in §§ 270.41 and 270.42 are general rules for effecting
changes to permits (e.g., permit modifications) whether initiated by the permit issuer
or by the permittee. Under these procedures, significant permit modifications are
effected through a process that resembles issuance of a permit, with requirements
for issuing a draft modification, an opportunity for public comment on the draft modi-
fication, and issuance of the final permit modification, which, in turn, is appealable
to the Environmental Appeals Board for a final decision before it becomes effective.
See generally 40 C.F.R. § 270.41 and Part 124.

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754 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Nevertheless, in making revisions to interim submissions, the
Regions must satisfy certain minimum due process requirements:
ie., they must (i) afford the permittee the opportunity to submit
written statements to, and meet with, members of the permitting
staff responsible for making the disputed revisions, (ii) afford the
permittee an opportunity to present its objections in writing to the
person in the Region who has authority for making the final permit
decision, and (iii) issue a written decision based on the record that
responds to the evidence and arguments of the permittee. Id. at
17 and 30. The permit modification procedures in §§ 270.41 and
270.42 by comparison are potentially much more elaborate, providing
inter alia for a public hearing in certain cases and an opportunity
to appeal the resulting decision to this tribunal. Therefore, when
comparing the dispute resolution provision in Allied-Signal’s permit
to the foregoing minimum due process requirements, it is clear that
Allied-Signal’s permit affords significantly more procedural process
to the permittee than is required by law, as well as existing Agency
practices and procedures.

Notwithstanding the additional process afforded by the dispute
resolution provision, Allied-Signal still finds fault with the dispute
resolution provision because, as best we are able to interpret its
objections, it fears that regardless of the process afforded it in revis-
ing an interim submission, it may nevertheless be compelled, over
its objections, to do testing or perform other burdensome and expen-
sive requirements without any process whatsoever. In the words of
Allied-Signal:

EPA appears to have misunderstood Allied’s concern
with [the dispute resolution provision]. It is not the
availability of comment and appeal in general that
is the issue, but rather the question of whether the
permit modification occurs before or after the time
when the Permittee must conduct potentially signifi-
cant additional studies. The revision of the document
prior to permit modification is not per se objection-
able, but when such revision must be preceded by,
e.g., additional testing or other expenditures, the bur-
den placed on the Permittee is impermissibly oner-
ous. * * * [Where revision of the submission would
involve more than simply revising a document, the
Permittee should not be required to make the

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ALLIED-SIGNAL, INC. (FRANKFORD PLANT) 755

changes required by EPA prior to permit modifica-
tion. Rather, EPA should require the changes
through the permit modification process itself.

Petition for Review at 3-4.

As explained by the Region, however, there should be no occasion
where, barring Allied-Signal’s noncompliance with an existing permit
requirement, Allied-Signal will not have an opportunity to challenge
the revision of an interim submission before having to perform addi-
tional testing or incurring other expenditures required by the revi-
sion. The Region notes that there are two possible circumstances
that might prompt it to direct Allied-Signal to perform testing follow-
ing Allied-Signal’s submission of an RFI report. See Response to Peti-
tion for Review at 4. One is a noncompliance situation where the
Region’s review of the RFI report reveals that Allied-Signal is in
violation of a testing requirement already incorporated in the permit,
such as in a previously approved RFI workplan. No new testing
is involved in this situation, since the testing requirement already
exists elsewhere in the permit.5 The other situation is when the
Region’s review of the RFI report reveals that testing requirements
not required by an existing permit provision are nevertheless nec-
essary to achieve the goals of the corrective action process. Id. This
situation involves new testing. It is only in the first circumstance
where Allied-Signal would not be entitled to postpone implementation
of the testing requirement until the dispute resolution procedures
for revising the interim submission have run their course; however,
as explained below, there is no deprivation of due process in that
instance.

In the first situation, a revision of the report directing Allied-
Signal to perform testing already required by the permit, but not
yet complied with, would amount to no more than a restatement
of an existing obligation. There is no reason why the mere restate-
ment of that obligation in a revision of an interim submission should
postpone implementation of the existing testing requirement. The
regulations impose a continuing obligation on permittees to comply
with all existing provisions of their permits, 40 C.F.R. § 270.30(a).

5Strictly speaking, there is no need in this situation for the Region to revise
the permit in order to compel the permittee to comply with such a testing requirement.
Since the testing requirement already exists elsewhere in the permit (for example,
the RFI workplan), revising a report to add the testing requirement amounts to
a redundancy. Nevertheless, for purposes of this decision we will assume that the
Region has valid and compelling reasons (relating to administration of the permit)
for duplicating an existing requirement.

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756 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Any noncompliance with the permit, including noncompliance with
requirements relating to the submission of documents and reports,
can give rise to the immediate exercise of the Agency’s enforcement
authority. See RCRA § 3008(a) (authorizing the Agency to enforce
against violations of the Act, such as a failure to comply with manda-
tory permit requirements). This authority can be invoked at any
time when a violation is believed to exist, and is therefore independ-
ent of the Region’s authority to revise a permittee’s interim submis-
sions. Consequently, the fact that the Region might restate an exist-
ing requirement in the context of revising a permittee’s interim sub-
mission does not, without more, provide a basis for the permittee
to postpone compliance with that requirement until the dispute reso-
lution procedures for revising the interim submission have run their
course. If Allied-Signal chooses not to comply with the requirement,
the Region will presumably bring an enforcement action against it
and all appropriate due process will be afforded to Allied-Signal in
that context.

In the second situation, any requirement to perform testing that
might arise from the Region’s review and revision of an interim
submission would flow from the Region’s determination that compli-
ance with the existing permit requirements, such as requirements
contained in an approved RFI workplan, has failed to generate the
type of information necessary to proceed to the next phase of the
corrective action process. In that situation, any requirement or direc-
tive to perform testing would create a new obligation. The Region
would have to implement the permit modification procedures before
making the new testing requirement effective and enforceable. This
is in fact exactly what the dispute resolution provision provides for,
and this is also exactly how the Region interprets the provision.
As explained by the Region,

[lf EPA determines that additional tasks not re-
quired by the approved workplan are necessary to
achieve the goals of the study in issue, EPA may
only require such tasks of Permittee by the permit
modification process. Such process would, of course,
provide Petitioner with the opportunity to be heard
as to the appropriateness of the additional tasks.
It is this opportunity which Petitioner appears to
be seeking in its Petition, and which it already has.

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ALLIED-SIGNAL, INC. (FRANKFORD PLANT) 757

Response to Petition for Review at 4.6 It is clear, therefore, that
in this second situation Allied-Signal’s petition is grounded on an
erroneous assumption, i.e., that the permit modification procedures
are not available before the testing requirement becomes mandatory.
They are in fact available, and therefore Allied-Signal’s petition for
review does not raise any legitimate grounds for reviewing the dis-
pute resolution provision of the permit. The available procedures
in the circumstances described afford Allied-Signal the amount of
process it has requested.

B. Groundwater Contamination Notification

A portion of the RFI Workplan/Investigation/Report Require-
ments in Allied-Signal’s permit is entitled “Community Relations.”
One of the requirements of this Community Relations section provides
for giving notification to neighboring property owners and residents
if contaminants have migrated beyond the facility boundary:

If, upon completion of the RFI, the Permittee discov-
ers that hazardous constituents in the groundwater
that may have been released from a SWMU at the
Facility have migrated beyond the Facility boundary
in concentrations that exceed health-based levels, the
Permittee may be required within fifteen (15) cal-
endar days of such discovery, [to] provide written
notice to the Regional Administrator and any person
who owns or resides on the land which overlies the
contaminated groundwater.

Permit Attachment C, Section A.6.b (footnote omitted).

Allied-Signal contends that this provision is unreasonable be-
cause the Frankford Plant is located in a high density commercial
and residential area where the groundwater is neither used nor usa-
ble for drinking water and therefore there is no likely route of human
exposure to the contamination.” It argues further that the plant’s

6We hereby deem the Region’s interpretation of the permit condition containing
the dispute resolution provision as binding, thus eliminating Allied-Signal’s concern.
See In re Owen Electric Steel Company of South Carolina, RCRA Appeal No. 89-
37, at 3, n.1 (Adm’r, Feb. 28, 1992) (The Administrator “deemed” the Agency’s reading
of the permit to be authoritative and binding, since it flowed directly from the language
of the permit and was reasonable).

7 Allied-Signal also argues that because the groundwater is not a source of drinking
water, the use of health-based action levels that are linked to drinking water to

trigger the notice requirement is inappropriate, and in any event the permit definition
Continued

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758 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

location makes the notice requirement onerous since it would require
Allied-Signal to (1) gain access to and conduct groundwater sampling
at numerous off-site locations to determine if contamination came
from one of its SWMUs, and (2) determine the identities and address-
es of every owner and resident of overlying property, both of which
“could be extremely time-consuming and difficult, if not impossible,
tasks.” Petition for Review at 8. We construe Allied-Signal’s argu-
ments as a challenge to the necessity of the notice requirement,
and hence to the adequacy of the Region’s justification for including
the provision in the permit.8

The Region responds that the notification requirement is reason-
able, despite the fact that the groundwater is not currently used
for drinking water and notwithstanding any unavoidable, but nec-
essary, burdens it may impose upon Allied-Signal. It argues that
notice serves the dual purposes of (i) informing present and future
users of the potential health risks of the contaminated groundwater
and (ii) providing those users with an opportunity to comment upon
potential response actions. Response to Petition for Review at 6.
The Region also points out that some individuals may be using the
groundwater for purposes other than drinking, and their interests
must also be factored into the decision to include the notice require-
ment. Id. at 7. To give validation to these purposes, the Region
cites the Agency’s Subpart S proposal, see 55 Fed. Reg. 30,798 (July
27, 1990), which includes a notice requirement almost identical to
the one at issue here.’ As stated in the preamble to this still-pending
proposal, the notice requirement is intended “to provide adequate

of health-based levels is too vague. We agree with the Region that this issue was
not raised in Allied-Signal’s comments on the draft permit, even though it was reason-
ably ascertainable at that time, and therefore is not preserved for review. See 40
C.F.R. §§ 124.13 and 124.19(a); In re Pollution Control Industries of Indiana, Inc.,
RCRA Appeal No. 92-3, at 3-4 (EAB, Aug. 5, 1992).

8 Although the potential recipients of notice under the permit provision include
the Regional Administrator as well as neighbors of the permittee’s facility, Allied-
Signal does not specifically voice objection to giving notice to the Regional Adminis-
trator. Accordingly, we interpret Allied-Signal’s objections as being confined to giving
notice to the neighboring residents and property owners.

Proposed 40 C.F.R. § 265.560 provides:

If at any time the permitted [sic] discovers that hazardous con-
stituents in ground water that may have been released from a
solid waste management unit at the facility have migrated beyond
the facility boundary in concentrations that exceed action levels,

• • • the permittee shall, within fifteen days of discovery, provide
      written notice to the Regional Administrator and any person who
      owns or resides on the land which overlies the contaminated
      ground water.

55 Fed. Reg. at 30,882.

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awareness for persons who are, or who could potentially be exposed
to the contaminated ground water.” Response to Petition for Review
at 6 (quoting 55 Fed. Reg. 30,798, 30,845 (July 27, 1990)). Except
for this reference to the Subpart S proposal, no specific legal author-
ity is cited by the Region for including the notice provision in the
permit. Because we are not fully persuaded by the Region’s stated
rationale for including this condition in the permit, we are remanding
this aspect of the permit to the Region for further action, as explained
below.

We do not question the Agency’s authority to issue a rule contain-
ing a notice requirement along the lines of the permit’s notice require-
ment. The Agency has general rulemaking authority under RCRA
to “prescribe * * * such regulations as are necessary to carry out
[its] functions under [the Act].” RCRA § 2002(a)(1), 42 U.S.C.A.
§ 6912(a)(1). Those functions include, inter alia, “assuring that haz-
ardous waste management practices are conducted in a manner which
protects human health and the environment,”!© and establishing
measures to carry out the corrective action provisions of RCRA con-
tained in RCRA § 3004(u) (“Continuing releases at permitted facili-
ties”) and RCRA § 3004(v) (“Corrective action beyond facility bound-
ary”). Under the latter of these two sections, RCRA § 3004(v), the
Agency may require corrective action “beyond the facility boundary
where necessary to protect human health and the environment unless
the [permittee] demonstrates to the satisfaction of the Administrator
that, despite the [permittee’s] best efforts, the [permittee] was unable
to obtain the necessary permission to undertake such action.” 42
U.S.C. §6924(v).11 By making the duty to perform remedial action
conditional upon obtaining permission from neighboring residents and
property owners, RCRA § 3004(v) implicitly, but unequivocally, con-
templates that some form of notice to those individuals may be nec-
essary during some phase of the corrective action process prior to
obtaining their permission to enter upon the property and commenc-
ing remedial action. Therefore, as a general proposition, properly
promulgated regulations containing notice requirements are easily
justifiable under the Act.

The proposed Subpart S rule is intended to address the corrective
action provisions of the Act. 55 Fed. Reg. 30,799 (“This rule defines
both the procedural and substantive requirements associated with

10RCRA § 1003(a)(4), 42 U.S.C.A. § 6902(a\4).

11Corrective action beyond the facility boundary can be implemented through
a RCRA permit. See 40 C.F.R. §264.101(c) and § 270.32(b)(1); In re General Electric
Company, RCRA Appeal No. 91-7, at 12-16 (Remand Order, EAB, Nov. 6, 1992).

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760 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

sections 3004(u) and 3004(v).”). What the Region fails to recognize,
however, is that the regulations in the proposed Subpart 5 rule
are merely proposals, not final regulations, and therefore they do
not have the force of law. They cannot be used to foreclose discussion
of whether it is proper to include them, or provisions similar to
them, in an individual permit. At most, they represent policy guid-
ance by the Agency, to be followed if appropriate in the circumstances
of the individual permit.!2 This is not to say that the Agency is
barred from drawing upon language in proposed regulations such
as the Subpart S regulations when writing the terms of an individual
permit. Clearly, it may do that; however, since the proposed regula-
tions are non-binding, they are “open to attack in any particular
case.” See In re General Motors Corporation, Delco Moraine Division,
et al., RCRA Appeal Nos. 90-24, 90-25, at 11, n. 15 (EAB, Nov.
6, 1992) (citing with approval the “Friedman Memorandum”); 13 In
re Envirosafe Services of Idaho, Inc., RCRA Appeal No. 88-41, at
6 (Adm’r, Apr. 8, 1990) (citing Panhandle Producers and Royalty
Owners Ass’n v. Economic Regulator Admin., 822 F.2d 1105, 1110—
1111 (D.C. Cir. 1987)); see also Simmons v. ICC, 757 F.2d 296, 300
(D.C. Cir. 1985) (“When an Agency promulgates a policy without
the formalities required to make it a valid rule, it must * * * in
subsequent adjudications, ‘be prepared to support the policy just as
if the policy statement had never been issued.’” (citation omitted)).
Consequently, whenever the Agency adopts a requirement from the
Subpart S proposals, it must be prepared to “consider[ ] and reject[ ]
proffered counterarguments.” 14 In re Envirosafe Services of Idaho,
Inc., supra at 6.

42 As noted in previous decisions of this Board, the proposed Subpart S regulations
represent the Agency’s most recent, comprehensive statement on corrective action.
See, eg., In re Beazer East, Inc. et al, RCRA Appeal No. 91-25, at 5, n.6 (EAB,
March 18, 1993); In re General Electric Company, RCRA Appeal No. 91-7, at 17,
n.9 (EAB, November 6, 1992).

13The Friedman Memorandum is a legal guidance document issued to EPA Re-
gional Counsels and RCRA Branch Chiefs, which indicates that although most of
the Subpart S proposal may be used as guidance, any specific permit requirements
based on the proposal must be justified on a case-by-case basis. See Memorandum,
dated March 27, 1991, from Lisa K. Friedman, EPA Associate General Counsel, Solid
Waste and Emergency Response Division, to Regional Counsels, RCRA Branch Chiefs,
regarding “Use of Proposed Subpart S Corrective Action Rule as Guidance Pending
Promulgation of Final Rule,” at 3.

14In In re Sandoz Pharmaceuticals Corporation, RCRA Appeal No. 91-14, at
8-11 (EAB, July 9, 1992), the Region included a permit provision similar to one
contained in the Subpart S rule, but deviated from it in material respects. We ruled
that the deviation required explanation in view of the fact that the Subpart S rule
“constitutes the Agency’s most recent, comprehensive statement of its views regarding
corrective action under RCRA §3004(u).” Id. at 9. In so ruling, we did not intend
to imply that strict adherence to the Subpart S rule is sufficient justification by

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ALLIED-SIGNAL, INC. (FRANKFORD PLANT) 761

In this case, we are not persuaded that the Region has performed
a thorough enough, permit-specific analysis as to why this particular
notice requirement is appropriate. See In re Sandoz Pharmaceuticals
Corporation, RCRA Appeal No. 91-14, at 11 (EAB, July 9, 1992)
(“Sandoz is correct that corrective action requirements should be tai-
lored to site-specific conditions at the facility.”), citing In re American
Cyanamid Company, RCRA Appeal No. 89-8, at 7 (Adm’r, Aug. 5,
1991) (“EPA guidance documents emphasize the importance of tailor-
ing RCRA corrective action requirements to site-specific conditions
in order to avoid imposing unnecessary or inappropriate burdens
upon the permittee.”). The notice provision crafted by the Region
is unclear as to precisely what circumstances will trigger the notice
requirement—notice “may be” required if contaminants in an off-
site release exceed specified health-based levels. If the statutory au-
thority for including a notice provision of this type derives principally
from RCRA § 3004(v), which seems logical under the circumstances,
or from RCRA § 3005(c)(3)—the so-called omnibus provision *—then
an analysis of either section would lead one to the conclusion that
the duty to give notice should be based on whether notice is necessary
to protect human health and the environment. However, it is by
no means clear that such a determination is required by the notice
provision in Allied-Signal’s permit. The Subpart S proposal relied
upon by the Region indicates that risk- or health-based levels are
not conclusive on the issue of protecting human health and the envi-
ronment. See proposed 40 C.F.R. §264.520, 55 Fed. Reg. at 30,875.
For example, under the Subpart S proposal, the Region has the
flexibility to determine either that (i) a release in excess of a risk-
based level does not require corrective action to protect human health
and the environment or (ii) that a release below the threshold never-
theless requires corrective action to protect human health and the
environment. Id. In view of the Region’s reliance on the Subpart
S proposal, it is reasonable to assume that it would interpret the
section in a similar manner, thus raising the concern that notice

itself to validate inclusion of such a requirement in a permit. To do that would
impermissibly raise the status of the proposed Subpart S rule to that of a legally
binding final rule.

15 The analysis is no different if instead of RCRA § 3004(v), the statutory authority
for the including of the notice provision in the permit is deemed to be the so-called
omnibus clause in RCRA § 3005(c)(3), 42 U.S.C. § 6925 (“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.”). See
also 40 C.F.R. § 270.82(b)(2) (same). The omnibus clause and RCRA § 3004(v) both
require, as a condition precedent to implementation, a determination of necessity
based on protection of “human health and the environment.”

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762 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

might be required without any clear nexus to protection of human
health and the environment.

Since we cannot conclude that the notice requirement challenged
by Allied-Signal is properly linked to protection of human health
and the environment, we are remanding the permit to the Region.
On remand, the Region may either eliminate the permit condition 16
or revise it so that notice-giving is only a requirement if a determina-
tion has been made that, based on the record, notice is necessary
to protect human health and the environment.

C. Failure to Change Permit Language

Allied-Signal contends that the Region abused its discretion by
failing to change language in the permit to reflect the Region’s re-
sponses to Allied-Signal’s comments on the draft permit. Specifically,
Allied-Signal states that “[flor nine of the permit conditions for which
Allied submitted Comments on the draft permit, EPA’s Response
to Comments accompanying the final permit expressed agreement
with Allied’s Comments; in each of these cases, however, the Agency
refused to change the permit language to accommodate Allied’s con-
cerns.” Petition for Review at 8. Although Allied-Signal asserts that
the Region failed to change the language of nine permit conditions,
it is pursuing its request for revised permit language for only three
of them. Petition for Review at 9.

Permit condition I.C., as noted earlier, provides that upon ap-
proval by the Region, all plans, reports, schedules and other submis-
sions required by the permit are incorporated into the permit. This
condition further provides that “[i]n the event of unforeseen cir-
cumstances beyond the control of the Permittee which can not be
overcome by due diligence, the Permittee may request a change,
subject to Regional Administrator approval, in the previously ap-
proved plans, reports, schedules or other submissions.”

16Removal of the permit condition would not relieve Allied-Signal from the duty
to give notice under appropriate circumstances in accordance with other permit terms.
For example, Permit Condition II.H. requires Allied-Signal to use “its best efforts
to obtain access to property beyond the boundaries of the Facility at which corrective
action is required by this permit.” Notification in some form is implicit in this require-
ment. Also, if the Region determines that such a release requires corrective action,
Permit Attachment E, Section 5.d(eiv), requires Allied-Signal to complete a corrective
measures study for the release, reporting on, inter alia, whether “access, easements
[and a] right-of-way” are available to implement the selected corrective measure. Again,
notification in some form is implicit in this requirement.

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ALLIED-SIGNAL, INC. (FRANKFORD PLANT) 763

Allied-Signal contends that the “unforeseen circumstances” lan-
guage “amounts to a force majeure provision, is too restrictive, and
should be revised to allow for changes under other circumstances.”
Petition for Review at 10. In its comments on the draft permit,
Allied-Signal requested that this provision be revised to allow any
changes to approved plans and schedules to be made through a Class
I permit modification under 40 C.F.R. § 270.42(a). In response to
the comment, the Region stated that:

EPA does not agree with the Permittee’s assertion
that this permit condition is restrictive. EPA accepts
all reasonable requests to revise plans and submis-
sions. In addition, the Permittee always has the op-
portunity to submit a Class I permit modification.
Accordingly, this provision will remain as written in
the draft permit.

Allied-Signal contends if permit condition I.C is not changed to reflect
the Region’s intention to accept all reasonable requests to revise
plans and submissions, Allied Signal must choose whether to follow
the language of I.C or the more flexible language in the response
to comments if it seeks a modification of an approved submission.
In other words, Allied-Signal is concerned that the language of the
permit will prevent the Region from fulfilling its promise to accept
all reasonable requests to revise plans and submissions.

We conclude that Allied-Signal’s concern is unfounded for two
reasons. First, the Region’s statement in its response to comments
that it will accept all reasonable requests to revise plans and submis-
sions merely restates what the Region is already required to do,
namely, act reasonably in implementing all permit conditions. In
any event, we hereby deem the Region’s response to be an authori-
tative and binding interpretation of the permit condition at issue,
thus eliminating Allied-Signal’s concern. See In re General Motors
Corporation, Delco Moraine Division, et al., supra, at 11, n. 15 (2nd
q) (EAB, Nov. 6, 1992); In re Owen Electric Steel Company of South
Carolina, RCRA Appeal No. 89-37, at 3, n.1(Adm’r, Feb. 28, 1992);.17

17Concerns as to the implementation of permit terms are not normally within
the Board’s purview. See In re General Electric Co., RCRA Appeal No. 91-7, at 14
(EAB, Nov. 6, 1992) (“[T]he role of the Board is to determine whether the permit
was appropriately issued. The Board has no oversight responsibility for the implemen-
tation of a validly issued permit.”). To the extent that Allied-Signal’s concern relates
to the implementation of permit condition I.C, it is beyond the purview of the Board
in this appeal.

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764 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Second, we agree with the Region that even if Allied-Signal
doubts the Region’s intent to accept all reasonable requests to revise
plans and submissions in circumstances meeting the criteria of permit
condition I.C, Allied-Signal may seek such revisions through formal
permit modification procedures. Under permit condition I.C., approved
plans and submissions become an enforceable part of the permit.
The permit itself provides, in condition I.F, that its terms may be
modified in accordance with 40 C.F.R. §§ 270.41 and 270.42. Thus,
permit condition I.C. is not the exclusive means available for Allied-
Signal to seek revisions to plans and submissions incorporated into
the permit by the Region’s approval.18 Therefore, review of this condi-
tion is denied.

Allied-Signal also seeks review of permit condition II.B.2, which
states that the RFI Plan “shall comply” with Attachment C, the
RFI Plan/Investigation/Report Requirements, and permit condition
II.C.2, which provides that the Corrective Measures Study “shall com-
ply” with the requirements of Attachment E, the Corrective Measures
Study. Allied-Signal argues that in order to allow the flexibility nec-
essary for the corrective action process, these permit conditions
should be changed to allow Attachments C and E to be used as
guidelines, and not “followed to the letter.” Petition for Review at

12. Although the response to comments indicates that the Attach-
    ments are intended to be used as guidance only, Allied-Signal con-
    tends that unless the “shall comply” language in the permit is
    changed to reflect the Region’s stated intent, Allied-Signal could be
    subject to citizen suits under RCRA §7002, 42 U.S.C. §6972. Id.
    at 13.

The Region admits that the response to comments has created
some confusion. In response to the petition for review, the Region
clarifies its intent, stating that the Attachments are not themselves
workplans, but are instead checklists of the elements that must be
addressed in a site-specific workplan. Response to Petition for Review
at 11. The Region explains that because Attachments C and E “are
meant for universal application in designing a workplan, they are

18The Region correctly notes that it has no obligation to provide an opportunity
for permit modification beyond those provided by 40 C.F.R. §§ 270.41 and 270.42
of the regulations, as set forth in permit condition I.F. Nevertheless, the Region
has provided, in effect, an additional opportunity in the “unforeseen circumstances”
provision of permit condition I.C. Thus, under the permit as written, Allied-Signal
can proceed under permit condition I.C, which allows modifications in “unforeseen
circumstances beyond the control of the Permittee which cannot be overcome by due
diligence,” or it can proceed under permit condition I.F, which allows permit modifica-
tions in a much broader variety of circumstances than under permit condition I.C.

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ALLIED-SIGNAL, INC. (FRANKFORD PLANT) 765

intentionally generic and broad.” Id. According to the Region, Attach-
ments C and E, however, also allow Allied-Signal the flexibility to
tailor the required workplan to the Frankford Plant by addressing
each element with information specific to that facility. Id.

In light of the Region’s explanation of what use must be made
of the Attachments to establish compliance with the permit, we con-
clude that Allied-Signal’s concerns do not merit formal review. As
explained by the Region, the permit reasonably requires Allied-Signal
to comply with its terms by addressing each element of the Attach-
ments with site-specific information. This process allows the party
with the greatest familiarity with the facility, Allied-Signal, to apply
the generic elements of the Attachments to the facility to create
a facility-specific workplan. We conclude that the approach set forth
in the permit as interpreted by the Region is sufficiently flexible
to allow full implementation of the corrective action process specific
to the needs of the Frankford Plant.19 Based on the Region’s interpre-
tation of these permit conditions in its response to the petition for
review, which we adopt as binding on the Agency, see In re Owen
Electric Steel Company of South Carolina, supra, we conclude that
review of these permit conditions is not warranted.

CONCLUSION

The notification issue discussed in part B, above, is remanded
for further proceedings consistent with this decision.20 The permit
condition containing the notification requirement shall remain stayed
on remand. The Region shall give public notice of the remand under
40 C.F.R § 124.10. Appeal of the remand decision shall not be re-
quired to exhaust administrative remedies under § 124.19(f)(1)(ii) of
the rules. Review of the other two issues raised by Allied-Signal
is hereby denied for the reasons set forth above.

So ordered.

19See In re Beazer East, Inc. and Koppers Industries, Inc., RCRA Appeal No.
91-25, at 7 (EAB, Mar. 18, 1993) (Region’s assurance that RFI and CMS workplan
outlines were intended as guidelines was provided in the permit language and was
sufficient to allow consideration of site-specific circumstances).

20 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. In re Beazer
East, Inc. and Koppers Industries, Inc., RCRA Appeal No. 91-25, at 15 (EAB, March
18, 1993).

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