Chemical Waste Management, Inc. Kettleman Hills Facility

Plain-English summary

El Pueblo para el Aire y Agua Limpio challenged a permit modification for Chemical Waste Management’s Kettleman Hills hazardous-waste facility in California. The petitioner argued that former EPA permits-section chief James C. Breitlow had a conflict because he discussed employment with CWM while the Region considered the modification. The Environmental Appeals Board found that Breitlow should have recused himself earlier but did not substantially participate in the decision, which was approved after he left EPA, and the record showed no prejudice to CWM or the public process. The Board denied review of the challenged modification and declined to reopen the earlier modification because it had become effective and was outside the Board’s jurisdiction.

Decision snapshot

• Cited authorities: 18 U.S.C. § 208(a); 40 C.F.R. §§ 3.103, 124.15(b), and 124.19
• Outcome: Review of the permit modifications was denied.
• Key point: A delayed recusal did not warrant overturning a permit decision when the official’s participation was minimal, non-prejudicial, and the final decision occurred after the official left EPA.

Full text (EPA EAB public release)

52 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF CHEMICAL WASTE
MANAGEMENT, INC. KETTLEMAN HILLS FACILITY

RCRA APPEAL NO. 91-17

ORDER DENYING REVIEW

Decided June 15, 1992

Syllabus

Petitioner, El Pueblo para el Aire y Agua Limpio, appeals a June 5, 1991,
decision by Region IX issuing a permit modification to Chemical Waste Management,
Inc. (CWM). Petitioner contends that the decisionmaking process was tainted because
James C. Breitlow, the Chief of the Permits Section for Region IX, was discussing
potential employment with CWM at the same time the modification was being consid-
ered by the Region. Petitioner suggests that Mr. Breitlow violated the Agency's ethical
standards and may be subject to criminal penalties under 18 U.S.C. §208(a), and
asks that the permit be delayed or declared void pending a full investigation. Petitioner
also asks that certain previously issued permits be reopened.

Held: Although Mr. Breitlow should have recused himself slightly earlier than
he did, he did not substantially participate in the decision to approve the June 5,
1991, modification and there is no evidence that his minimal participation in the
permit review process in any way benefited CWM. Moreover, the final decision to
approve the modification was made after Mr. Breitlow had left the Agency. In light
of the totality of these circumstances, the decisionmaking process was not compromised
or prejudiced by Mr. Breitlow’s actions. Review is therefore denied.

With regard to reopening other permits, the only other permit determination
that was made after Mr. Breitlow’s initial contact with CWM was a March 19, 1991,
modification. Because that modification became effective thirty days after service of
notice (40 C.F.R. §124.15(b)), the Board is without jurisdiction to review it. Accord-
ingly, review of that modification is also denied.

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

Opinion of the Board by Judge Reich:
This case involves a petition for review of the issuance by U.S.
EPA, Region IX, on June 5, 1991, of a permit modification to Chemi-

cal Waste Management, Inc.’s (CWM’s) Kettleman Hills facility. The
petition also asks that a previous modification, approved on March

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19, 1991, be reopened. The facility, located in Kings County, Califor-
nia, is a hazardous waste treatment, storage and disposal facility
operating under a Resource Conservation and Recovery Act (RCRA)
permit first issued in March of 1988. The Kettleman Hills facility
has been the site of considerable controversy, with substantial con-
cerns being raised by and on behalf of its primarily Latino commu-
nity.

Petitioner, El Pueblo para el Aire y Agua Limpio, argues that
these permit modification decisions were tainted because James C.
Breitlow, former Chief of the Permits Section, Hazardous Waste Man-
agement Division for Region IX, was discussing potential employment
with CWM at the same time the modifications were being considered.
Thus, according to Petitioner, the permit modifications should be
stayed pending a full investigation and declared void if any laws
were violated. Region IX submitted portions of the administrative
record and a response to the petition. Attached to that response
were declarations of various persons involved either in Mr. Breitlow’s
discussions with CWM or with the processing of CWM’s permit modi-
fications. The Petitioner provided comments on the Region’s response
on December 19, 1991.

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 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). The preamble
to the Federal Register notice in which Section 124.19 was promul-
gated states that “this power of review should be only 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. For the reasons set
forth below, we conclude that Petitioner has failed to show that
review of the permit modifications is warranted under 40 C.F.R.
§ 124.19, and therefore review is denied.

I. BACKGROUND
A. Permit Modifications

On July 31, 1990, CWM requested a class 2 modification to
its existing RCRA operating permit that would allow it to construct
a new landfill (known as landfill B—18) at its Kettleman Hills facility.
For reasons of administrative efficiency, this request was incorporated
into another proposed modification (modification #3) which contained

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54 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

additional changes to the RCRA permit including, among other
things, the approval of a closure plan for another eleven landfills
and three surface impoundments. Under an agreement with the State
of California,! the California Department of Health Services (DHS)?
conducted the primary technical review of the entire modification
package, conducted public hearings, reviewed public comments, and
prepared the requisite permit decision documents for EPA approval.
DHS transmitted the completed modification package to Region IX
with a cover letter addressed to Mr. Breitlow on February 20, 1991,
and recommended its approval.

On March 19, 1991, the Region issued a part of the modification
package addressing only the class 2 modification request (authorizing
completion of the B—18 landfill). At the informal request of the United
States Fish and Wildlife Service (FWS), the Region delayed final
approval of the balance of the permit modification pending the release
of an FWS biological opinion addressing potential harm to endan-
gered species. This modification was issued on June 5, 1991, and
is the subject of this appeal. Petitioner further requests that EPA
reopen all CWM permits and permit modifications granted by the
Region during the time in which Mr. Breitlow was discussing possible
employment with CWM.

B. Mr. Breitlow’s Contacts With CWM

From December 1986 to May 1991, Mr. Breitlow was employed
by Region IX as Chief of the Permits Section, Hazardous Waste
Management Division. On February 21, 1991, Mr. Breitlow received
a telephone call from Corin Hylton, an executive recruiter employed
by Northern California Management Recruiters in San Francisco,
California. Mr. Hylton asked Mr. Breitlow if he was interested in
employment in the private sector. Mr. Breitlow indicated that he
might be interested in working for companies engaged in environ-
mental work such as Chevron, Dow, DuPont, or CWM. Declaration
of James C. Breitlow at 78. Mr. Breitlow agreed to send Mr. Hylton
a copy of his resume and gave Mr. Hylton permission to send “blind”
copies (without any identifying personal information) to companies
such as the ones Mr. Breitlow described.

1California is not an authorized State under RCRA § 3006(b), 42 U.S.C. §6926(b),
but receives RCRA grant funds to assist EPA in the technical analysis and develop-
ment of RCRA permits and modifications.

2DHS has recently reorganized as the Department of Toxic Substances Control,
California Environmental Protection Agency.

3 FWS’s final biological opinion was issued on May 2, 1991.

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On either February 25 or 26, 1991, Mr. Hylton contacted CWM
on behalf of Mr. Breitlow, although he did not identify his client
as Mr. Breitlow at that time. (Mr. Hylton’s Declaration is ambiguous
as to the precise date of this first contact with CWM.) On March
8, 1991, after receiving expressions of interest from CWM, Mr. Hylton
identified Mr. Breitlow as his client and sent CWM a complete copy
of Mr. Breitlow’s resume. Mr. Breitlow was not aware that he had
been identified to CWM until March 15, 1991. Breitlow Declaration
at 79. On that date, Mr. Hylton informed Mr. Breitlow of CWM’s
interest and that an interview had been scheduled for March 22,
1991. Mr. Breitlow immediately informed his supervisor, Michael
Feeley, that he was recusing himself from all decisions relating to
CWM and submitted a signed statement to that effect. Declaration
of Michael Feeley in Support of Region IX’s Response To Petition
for Review at 73; Breitlow Declaration at ¶9. Mr. Breitlow also
informed Fredrick Moore, an environmental engineer in the Permits
Section, who was responsible for matters concerning CWM’s
Kettleman Hills facility.

Mr. Breitlow interviewed with CWM on March 22 & 26, 1991.
On April 23, Mr. Breitlow informed his supervisor that he had accept-
ed a position with CWM as Environmental Manager for the Western
ENRAC Division. Mr. Breitlow’s last day with EPA was May 12,
’ 1991. He began working for CWM on May 13, 1991.

II. DISCUSSION

A. June 5, 1991 Modification

Petitioner contends that Mr. Breitlow violated “codes of ethical
conduct for government employees”* and suggests that he may be

4EPA’s ethical standards of conduct for employees provide, in part:

Employees may not use their official positions for private gain
or act in such a manner that creates the reasonable appearance
of doing so.

Employees therefore must not:

• • %

(d) Take any action, whether specifically prohibited or not,
which would result in or create the reasonable appearance of:

(1) Using public office for private gain;

(2) Giving preferential treatment to any organization or person;

(3) Impeding Government efficiency or economy;

(4) Losing independence or impartiality of action;
Continued

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56 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

subject to criminal penalties under 18 U.S.C. § 208(a).5 Today’s deci-
sion addresses only the alleged ethical violations.⁶

Under the Agency’s ethical standards, an employee’s duty to re-
frain from participating in matters affecting a prospective employer
arises as soon as the employee, either directly or through an
intermediary, makes contact with that employer. See EPA Ethics
Advisory 87-7 (July 17, 1987) Attachment at 2. (This would not
include the mass distribution of resumes without additional commu-
nications. Id.)

In the present case, Mr. Breitlow specifically mentioned CWM
as one of the companies in which he was interested and shortly
thereafter Mr. Hylton contacted CWM on Mr. Breitlow’s behalf. Given
Mr. Breitlow’s expressed preferences, it was reasonable for him to
assume that CWM would receive a copy of his blind resume. Mr.
Breitlow was also well aware that his Section was processing the
CWM permit modification. Under a strict reading of the ethical guide-
lines, Mr. Breitlow should have recused himself at the time his re-
sume was sent to CWM (February 25 or 26, 1991) rather than waiting

(5) Making a Government decision outside of official channels;
or

(6) Adversely affecting public confidence in the integrity of Gov-

ernment or EPA.
40 C.F.R. §3.103.
5 That section provides, in part:

[W]Jhoever, being an officer or employee of the executive branch
of the United States Government * * * participates personally
and substantially as a Government officer or employee, through
decision, approval, disapproval, recommendation, the rendering of
advice, investigation or otherwise, in a judicial or other proceeding,
application, request for a ruling or other determination * * * or
other particular matter in which, to his knowledge, he, * * *
or any person or organization with which he is negotiating or
has any arrangement concerning prospective employment, has a
financial interest—

Shall be fined not more than $10,000, or imprisoned not more
than 2 years, or both.

6Because the Agency’s ethical standards require an employee to avoid actions
which might result in or create the “reasonable appearance” of impropriety, they
impose a much broader standard of disqualification than that imposed by 18 U.S.C.
§208. As to any alleged violation of §208, we note that the Region’s response to
the petition for review asserts that the United States Attorney’s Office concluded,
after investigation, that prosecution was not warranted. We did not attempt to confirm
this assertion in light of privacy considerations and since we did not rely upon it
in reaching our decision. Region IX’s Response to Petition for Review at 2.

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until March 15, 1991.7 After a thorough review of the record on
appeal, however, we conclude that the eighteen or nineteen day delay
in recusal, combined with Mr. Breitlow’s minimal participation in
the matter, does not warrant review of the June 5, 1991, permit
modification.

The declarations submitted with the Region’s Response to Peti-
tion for Review support a determination that Mr. Breitlow did not
substantially participate in the permit review process while it was
under consideration by the state. It was DHS that prepared the
initial permit modification package, conducted public hearings, and
prepared the appropriate documentation. Although there was con-
sultation with EPA, at no time did Mr. Breitlow “review, advise
or express any concern at all concerning the technical contents or
preparation of the permit modification package.” Declaration of
Fredrick Moore in Support of Region IX’s Response to Petition for
Review at 95; see also Breitlow Declaration at 947, 15. Rather,
it was Fredrick Moore who consulted with DHS on development of
the permit modification package. Declaration of William Veile in Sup-
port of Region IX’s Response to Petition for Review; Declaration of
James Pappas in Support of Region IX’s Response to Petition for
Review. The submission by DHS to Region IX, reflecting the culmina-
tion of the state’s review, preceded even the first contact between
Mr. Breitlow and Mr. Hylton and, as such, could not have been
affected by the subsequent course of events.

The documentation submitted by Region IX indicates that the
only decision concerning CWM’s permit modification in which Mr.
Breitlow participated was the decision to delay issuance of modifica-
tion #3 until the FWS completed its final biological opinion. Mr.
Breitlow concurred in that decision on or about February 26, 1991.
Moore Declaration at ¶5. This decision was adverse to CWM’s inter-
ests at the time in that it delayed the ultimate approval of this
modification, which had been requested by CWM itself. Mr. Breitlow
did not participate in any other substantive decision regarding the
modification. Id. at ¶5-7; Feeley Declaration ¶4-5. We therefore

7This is true even though CWM initially received a copy of Mr. Breitlow’s resume
which Mr. Hylton characterized as “blind”. The ethical guidelines indicate that the
obligation of recusal becomes effective when an employee makes contact with a particu-
lar person or organization either directly or through an intermediary. This situation
occurs once that contact is made on behalf of a specific individual, whether or not
the potential employer is initially aware of the applicant’s name.

8The record on appeal contains two documents on which Mr. Breitlow’s name

appears. These are the official file copies of the Final Decision on the March 19,
Continued

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58 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

reject Petitioner’s suggestion that Mr. Breitlow improperly influenced
the modification decision. It should also be noted that the final modi-
fication decision was issued after Mr. Breitlow’s recusal and after
he had left the Agency entirely.

We note that in support of its petition, Petitioner also suggests
that several other aspects of the modification process were tainted
by Mr. Breitlow’s alleged conflict of interest. Specifically, Petitioner
contends that

despite repeated requests, both EPA and [DHS] re-
fused to hold a public hearing on this permit modi-
fication in Kettleman City, the community closest
to—and most affected by—the toxic waste dump.
EPA has further refused to do a health risk assess-
ment of the permit modification, despite the commu-
nity’s very real fears of toxic air contamination.

Petition at 3. Petitioner also states that “based on a decision by
Mr. Breitlow, the EPA did not even show up at the sole hearing
on this permit modification, instead abdicating responsibility entirely
to [DHS]⁸.” Id. at 4 (emphasis in original). We note, however, that
the public hearing, conducted by DHS, was held on November 27,
1990, well before Mr. Breitlow was contacted regarding employment
in the private sector. Thus there is no basis in the record to conclude
that any decisions regarding the location of, or the Region’s participa-
tion in, the public hearing were influenced by Mr. Breitlow’s subse-
quent employment contacts with CWM. Moreover, the record on ap-
peal indicates that Mr. Breitlow did not substantially participate
in these decisions. Similarly, the record indicates that any decisions
regarding the need for a risk assessment were made prior to February
25 or 26, 1991 (the date Mr. Hylton first contacted CWM on Mr.
Breitlow’s behalf), and, in any case, were not made by Mr. Breitlow.

1991 modification and the letter transmitting the Agency’s notice of this decision
to CWM. Mr. Breitlow’s name appears along with several others on the concurrence
line of these documents. Thus, at first glance, it might appear that Mr. Breitlow
concurred in the March 19 modification. Upon closer examination, however, it appears
that these documents do not show that Mr. Breitlow concurred in these decisions.
Rather it was Thomas Kelly, an environmental engineer in the Permits Section, who
signed these documents as “Kelly 4 Breitlow.” Because of his recusal, Mr. Breitlow
had instructed Mr. Kelly to act as the Permits Section Chief when necessary to
review decisions relating to CWM. Declaration of Thomas Kelly in Support of Region
IX’s Response to Petition for Review at ]4. Although it is unfortunate that Mr. Kelly
indicated his concurrence in this manner, the record indicates that he did not consult
with or receive any input from Mr. Breitlow. Id.

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Therefore, none of these allegations justifies review of the permit
modifications.

We therefore conclude that, because of Mr. Breitlow’s limited
involvement in preparing the modification package, the short period
of time between the initial contact with CWM and Mr. Breitlow’s
recusal,⁹ and the fact that the final modification decision was made
after Mr. Breitlow had left the Agency, review of the June 5, 1991,
permit modification is not warranted and is hereby denied.¹⁰ Had
the delay in recusal been greater, or Mr. Breitlow’s involvement been
more significant, we might well have reached a contrary result.

B. March 19, 1991 Modification

Petitioner also requests that we reopen all previous CWM per-
mits and permit modifications “issued by Region IX during the time
in which Mr. Breitlow was negotiating with [CWM] for future employ-
ment, including at a minimum the EPA’s March 19, 1991 authoriza-
tion to construct landfill B-18.” Petition at 4. Because any contacts
with CWM could not be viewed as starting any earlier than February
25 or 26, 1991, only the March 19, 1991, permit modification is
encompassed by this request. However, the March 19, 1991, permit
modification became effective in accordance with 40 C.F.R.
§ 124.15(b), thirty days after service of notice since it was not ap-

⁹We note that there is language in the Agency's ethics guidance indicating that,
in certain cases, recusal may not be a sufficient response to avoid ethical concerns.
In some cases, Agency employees may be required to refrain from any contacts with
a potential employer if that employer has pending business with the Agency. See
EPA Ethics Advisory 86-10 (November 6, 1986) and attached Department of Justice
memorandum dated November 12, 1976. We reach no conclusion as to whether this
requirement should have applied to Mr. Breitlow. Under the facts of this case, there
is no reason to conclude that Mr. Breitlow’s discussions with CWM in any way unduly
influenced the permit review process as conducted by the Region or that any action
other than Mr. Breitlow’s recusal was necessary to avoid such potential influence.

10Jn reaching this conclusion, we recognize that neither Petitioner nor the public
in general was given notice of Mr. Breitlow’s recusal, nor were they aware of his
limited involvement in the development and approval of the permit modification. It
is therefore understandable that the timing of Mr. Breitlow’s decision to accept a
position with CWM could arouse public concern and suspicion. Although we conclude
that there was no improper influence in the present case, in the future the Region
may wish to consider providing the public with more complete disclosure whenever
possible. For example, the Region may have avoided this situation by fully disclosing
the circumstances surrounding Mr. Breitlow’s recusal at the same time it issued
the June 5, 1991, modification. By this time, Mr. Breitlow had already left the Agency
and begun work with CWM and full disclosure of Mr. Breitlow’s limited role might
have clarified and perhaps resolved Petitioner’s concerns.

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60 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

pealed at that time. The Board has no jurisdiction over that permit
modification. Review is therefore denied.

We note that even if we had jurisdiction over the March 19
modification, we would likely have denied review given the facts
of this case as discussed in the previous section dealing with the
June 5 modification.

So ordered.

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