Beazer East, Inc. and Koppers Industries, Inc.

Plain-English summary

Koppers Industries, the owner, and Beazer East, the operator, challenged the federal portion of a hazardous-waste permit for a wood-treatment facility in Guthrie, Kentucky. They raised issues about reporting terms, corrective-action workplans, deadlines, duplicative investigations, and several areas requiring investigation or sampling. The Environmental Appeals Board denied review on those issues, in part because the permit allowed site-specific adjustments and the objections were speculative or unsupported. The Board remanded one issue, directing EPA Region IV to remove an abbreviated procedure for agency-initiated schedule-of-compliance modifications and use the regulatory procedure in 40 C.F.R. § 270.41.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19, 124.19(f)(1)(iii), 261.11(a)(3), 261.32, 264.97, 264.101, 270.4(a), and 270.41; 42 U.S.C. §§ 6901, 6924(u), and 6926(b).
• Outcome: Mixed. The permit was remanded on the modification procedure, and review was denied on the remaining issues.
• Key point: An agency cannot use an abbreviated, non-appealable permit-modification procedure that has not been adopted by regulation.

Full text (EPA EAB public release)

536 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF BEAZER EAST, INC., AND
KOPPERS INDUSTRIES, INC.
RCRA Appeal No. 91-25
ORDER DENYING REVIEW IN PART AND REMANDING IN
PART
Decided March 18, 1993
Syllabus

Koppers Industries, Inc. and Beazer East, Inc. (Beazer) 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 Conservation and Recovery Act. The petition
seeks review of a permit for Beazer’s wood treatment facility in Guthrie, Kentucky.
Beazer asks that review be granted with respect to whether: (1) permit condition
LA. is inconsistent with the language of 40 C.F.R. § 270.4(a) (1991); (2) the permit’s
use of the term “hazardous constituent” rather than “hazardous waste constituent”
is arbitrary and capricious; (3) the characterization of the RCRA Facility Investigation
(RFI) Workplan Outline and the Corrective Measure Study Plan Outline as “require-
ments” rather than “guidelines” is improper; (4) the 30-day period for submitting
the final RFI report is unreasonably short; (5) many of the permit’s corrective action
requirements are duplicative and unnecessary in light of prior and ongoing remedi-
ation; (6) the permit improperly requires further investigation of various solid waste
management units or areas of concern; and (7) the permit’s abbreviated procedure
for Agency-initiated modifications to the schedule of compliance improperly deprives
Beazer of the right to an administrative appeal.

Held: The permit is remanded and the Region is directed to remove the abbre-
viated modification procedure (Appendix E) from the permit and revise Permit Condi-
tion IIL.1.2. to specify that Agency-initiated modifications to the schedule of compliance
must proceed in accordance with 40 C.F.R. § 270.41. Review is denied with regard
to all other issues.

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BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 537
Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.
Opinion of the Board by Judge McCallum:
I. BACKGROUND

Koppers Industries, Inc. (the owner) and Beazer East, Inc. (the
operator) (hereinafter referred to collectively as “Beazer”)! have filed
a petition seeking review of the federal portion of a permit issued
by U.S. Environmental Protection Agency Region IV (the “Region”)
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, for Beazer’s wood treatment facility in
Guthrie, Kentucky.? As requested by the Agency's Judicial Officer,?
the Region filed a response to Beazer’s petition for review.

Since approximately 1913, the facility has produced treated wood
products using a pressurized creosote process. The primary wastes
of concern from Beazer’s operations contain creosote and constituents
released from the degradation of creosote. These wastes originate
from, among other things, the drippage of freshly treated wood and
from process wastewater from which K001 sludge is generated.* Ac-
cording to a 1987 Interim RCRA Facility Assessment Report (dated
June 9, 1987), releases of creosote contaminated waste have occurred
and may have migrated off-site. The final HSWA permit determina-
tion (dated September 30, 1991) requires, among other things, inves-
tigation of releases at several of the facility’s solid waste management
units (SWMUs) or areas of concern and requires Beazer to comply
with all land disposal restrictions applicable to the facility. In appeal-
ing the permit determination, Beazer argues that: (1) Permit Condi-
tion ILA. contains language inconsistent with the language of 40
C.F.R. §270.4(a) (1991); (2) the term “hazardous constituents” in Per-
mit Condition I.D.14. should be replaced by “hazardous waste con-
stituents;” (3) the characterization of the RCRA Facility Investigation

1 Both parties are listed on the final permit.

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

3 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).

4K001 waste is a specific-source waste listed under 40 C.F.R. § 261.32 as “[bJottom
sediment sludge from the treatment of wastewaters from wood preserving processes
that use creosote and/or pentachlorophenol.”

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538 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
(RFI) Workplan Outline and the Corrective Measure Study (CMS)
Plan Outline (Appendix B and C to the final HSWA permit) as re-
quirements rather than guidelines is arbitrary and capricious; (4)
the 30-day period for submitting the Final RFI Report in Permit
Condition II.E.3.b. is unreasonably short; (5) many of the permit’s
corrective action requirements are duplicative and unnecessary in
light of ongoing investigations and remediation efforts required by
the State; (6) the permit improperly requires investigation of certain
SWMUs and areas of concern; and (7) the permit’s abbreviated proce-
dure for Agency-initiated modifications to the schedule of compliance
(Permit Condition II.1.2. & Appendix E) is contrary to the regulations
and constitutes an abuse of discretion.
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, at 3 (EAB, Au-
gust 5, 1992); Sandoz Pharmaceuticals Corp., RCRA Appeal No. 91-
14, at 3 (EAB, July 9, 1992).

1. Permit Condition IA.
   Permit Condition I.A. of the draft HSWA permit stated in perti-
   nent part as follows:
   Compliance with this RCRA permit constitutes com-
   pliance, for purposes of enforcement with Subtitle
   C of RCRA, except for those requirements not in-
   cluded in the permit which become effective by stat-
   ute, which are promulgated, or those which restrict
   placement of hazardous wastes in or on the land.
   In its comments on the draft permit, Beazer argued that this lan-
   guage did not accurately reflect the language of 40 C.F.R. § 270.4.
   Comments on Draft Permit at 1 (Exh. A to Petition for Review).
   40 C.F.R. § 270.4(a) (1991) provides:
   VOLUME 4
   BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 539
   Compliance with an [sic] RCRA permit during its
   term constitutes compliance for purposes of enforce-
   ment, with Subtitle C of RCRA except for those re-
   quirements not included in the permit which become
   effective by statute, or which are promulgated under
   part 268 of this chapter restricting the placement
   of hazardous wastes in or on the land.
   In its Petition for Review Beazer argued that “{t]he Permit should
   be modified to ensure that Condition L.A. is consistent with 40 C.F.R.
   §270.4 and the existing caselaw [sic] * * *.” Petition for Review
   at 2. As the Region stated in its Response, however, the permit
   has already been revised to accurately reflect the language of § 270.4.5
   Region’s Response at 3. This issue is therefore moot.
2. Release of Hazardous Constituents
   Permit Condition I.D.14.a. provides:
   The Permittees shall report any noncompliance
   which may endanger human health or the environ-
   ment. Any such information shall be reported orally
   to the RA within 24 hours from the time the Permit-
   tees become aware of the circumstances. This report
   shall include:
   i. Information concerning the release of any hazard-
   ous waste or hazardous constituent which may en-
   danger public drinking water supplies.
   ii. Information concerning the release or discharge
   of any hazardous waste or hazardous constituents,
   or of a fire or explosion at the facility, which could
   threaten the environment or human health outside
   the facility.
   Beazer argues that use of the term “hazardous constituents” in the
   above-quoted provision creates confusion regarding its reporting obli-
   gations and should be replaced by “hazardous waste constituents.”
   According to Beazer, the latter term is employed in the permit to
   define its monitoring responsibilities, and is narrower in scope than
   SDue to an administrative error, the revised condition was not included in the
   final HSWA permit originally sent to Beazer. This error has been corrected and
   the modified condition has been incorporated into the final permit contained in the
   record on appeal.
   VOLUME 4
   540 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

“hazardous constituents.” Therefore, without the change, Beazer be-
lieves it would be required to report releases of constituents that
it is not required to monitor. Petition for Review at 3.

The principal problem we have with this argument is that Beazer
does not provide any citations to the permit or the record to support
its belief that there is a permit term obligating it to monitor “hazard-
ous waste constituents,” as opposed to monitoring “hazardous con-
stituents.” Our own examination of the permit fails to disclose any
use of the term “hazardous waste constituents,” but it does disclose
numerous instances where the permit employs the term “hazardous
constituents.” ® In addition, we fail to see how use of the latter term
is in any way objectionable. It is clear that the Agency has the
authority under section 3004(u) of RCRA to regulate releases of haz-
ardous constituents from any solid waste management unit at
Beazer’s facility. In interpreting section 3004(u), which authorizes
the Agency to regulate “all releases of hazardous waste or constitu-
ents from any solid waste management unit,” the Agency has relied
upon the legislative history of RCRA in arriving at the determination
that these so-called “hazardous constituents” should be defined by
reference to Appendix VIII of 40 CFR Part 261.7

The term “hazardous constituent” as used in this
section is intended to mean those constituents listed
in Appendix VIII to 40 CFR Part 261 [H.R. Rep.

@in addition to obligating Beazer to comply with the various terms and conditions
explicitly set forth in the permit, the permit also states that Beazer must comply
with various regulations, specifically, 40 C.F.R. Parts 260 through 264, 266, 268, 270,
and 124, We have not combed every single word in these regulations to discover
whether the term “hazardous waste constituents” is ever used, but we do note that
one of the principal provisions governing monitoring uses the term “hazardous constitu-
ents.” See 40 C.F.R. §264.97 (“General ground-water monitoring requirements”). Al-
though not mentioned in the permit, the Agency's proposed “Subpart S” regulations,
which represent the Agency's most recent, comprehensive statement on corrective ac-
tion under RCRA Section 3004(u), see In re General Electric Company, RCRA Appeal
No. 91-7, at 17, n. 9 (EAB, November 6, 1992), similarly appears to employ the
“hazardous constituent” terminology, rather than the term “hazardous waste constitu-
ents.” See 55 Fed. Reg. 30,798 et seq. (July 27, 1990).

7 Appendix VIII, which is denominated “Hazardous Constituents,” consists of a
list of substances that have been shown “to have toxic, carcinogenic, mutagenic or
teratogenic effects on humans or other life forms.” 40 C.F.R. § 261.11(aX(3). Appendix
VIII was first published on May 19, 1980, prior to the enactment of section 3004(u)
of RCRA in 1984. See 45 Fed. Reg. 33066, 33132-33 (May 19, 1980). At that time,
Appendix VIII served as one of several criteria used by the Agency to identify and
list hazardous wastes. Id. at 33121 (codified at 40 C.F.R. §261.11(aX(3)). Appendix VIII
currently serves that same function, see 40 C.F.R. §261.11(aX3) (1992), as well the
additional function of defining hazardous constituents for purposes of section 3004(u)
of RCRA.

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BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 541
No. 198, 98th Cong., 1st Sess., part 1, 60-61(1983)]
and includes hazardous constituents released from
solid waste and hazardous constituents that are reac-
tion byproducts. S. Rep. No. 98-284, 98th Cong., Ist
Sess. 32 (1983).
50 Fed. Reg. 28713 (July 15, 1985) (brackets in original); see also
RCRA §3004(u), 42 U.S.C. § 6924(u); 40 C.F.R. § 264.101; In re Owen
Electric Steel Company of South Carolina, RCRA Appeal No. 89-
37, at 6-7 (Adm’r, Feb. 28, 1992) (upholding the Region’s legal au-
thority to require a permittee to report releases of hazardous constitu-
ents from SWMUs). As used in the permit, the term “hazardous
constituents” has a discrete meaning: it is defined as “substances”
listed in Appendix VIII to 40 C.F.R. Part 261. See Permit Condition
1.G.2. The Agency has previously upheld a corrective action permit’s
monitoring provision that required monitoring of Appendix VIII haz-
ardous constituents. In re Hoechst Celanese Corporation, RCRA Ap-
peal No. 87-13 (Adm’r, Feb. 28, 1989). Beazer has not explained
how an obligation to report releases of these substances would result
in it being required to report releases of constituents not falling
within the lawful scope of its monitoring responsibilities under the
permit. Nor has Beazer shown that the permit is defective in any
respect for employing the term “hazardous constituents.” It is a de-
fined term in both the permit and the regulations. We therefore
reject Beazer’s contention that the term “hazardous constituents” in
the reporting provisions of the permit should be modified in any
respect. Accordingly, the Region has not overstepped its bounds. Re-
view of this issue is denied.

3. RFI and CMS Minimum Requirements
   Beazer objects to Permit Conditions ILE.1.c. and IL.G.1.b., which
   require, inter alia, that the RFI Workplan and the CMS Plan meet
   the requirements of permit Appendices B (RCRA RFI Workplan Out-
   line) and C (CMS Plan Outline) respectively. Specifically, Beazer con-
   tends that these documents are intended as guidelines for preparing
   RFI and CMS workplans and “should not be given inflated impor-
   tance by referring to them as ‘requirements’.” Apparently, Beazer
   is concerned that by referring to these provisions as “requirements,”
   the Region will apply them in an overly rigid manner without ade-
   quate regard for site-specific considerations. See Comments on Draft
   Permit at 4 (Exh. A to Petition for Review) (stating that the term
   “requirements” “appears to be too rigid”).
   VOLUME 4
   542 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
   We agree that corrective action requirements must not be so
   rigid as to ignore site-specific conditions at a facility. See In re Gen-
   eral Motors Corporation, RCRA Consolidated Appeal Nos. 90-24, 90-
   25, at 10 (EAB, November 6, 1992) (“{T]o the extent practicablel,]
   corrective action requirements must be tailored to site-specific condi-
   tions at the facility.”). In the present case, however, the Region points
   out that the permit allows Beazer to deviate from the corrective
   action requirements in appropriate circumstances. That is, although
   the disputed permit conditions refer to Appendices B and C as “re-
   quirements,” both conditions provide that the Regional Administrator
   may allow omissions or deviations where the permittee provides suffi-
   cient written justification. Thus, the permit allows both the RFI
   Workplan and CMS plan to be tailored to the facility based on site-
   specific considerations. Beazer’s concerns regarding the rigidity of
   the disputed permit conditions are therefore exaggerated and do not
   warrant further review.®
4. Final RFI Report Deadline
   Beazer objects to that portion of Permit Condition ILE.3.b. which
   requires Beazer to submit to the Regional Administrator (RA) a final
   RFI report within 30 days of receiving the RA’s comments on the
   draft RFI report. Beazer contends that because the extent of the
   RA’s comments on the draft report are unknown, the possibility exists
   that 30 days may not provide enough time to submit the final report.
   ®Beazer also states in its petition for review that “[blecause EPA is asserting
   that these two guidelines represent minimum requirements for the RFI and CMS
   workplans respectively and because no statutory or regulatory authority exists support-
   ing this assertion, these conditions of the Permit are arbitrary, and capricious and
   represent an abuse of discretion.” Petition for Review at 4. This objection, however,
   is so conclusory as to preclude meaningful review. That is, Beazer fails to explain
   exactly why it believes the disputed permit provisions exceed the Region’s statutory
   or regulatory authority and we find nothing in the record on appeal that sheds addi-
   tional light on the substance of its argument. In Beazer’s comments on the draft
   permit, Beazer stated:
   {Permit Condition II.E.1.c] refers to the “requirements” and “mini-
   mum requirements” of Appendix B. This language appears to be
   too rigid. It is our understanding that Appendix B parallels a
   model document which was originally intended to address most
   potential situations encountered during a RFI. As such, we agree
   with the use of Appendix B as a guideline, and are in agreement
   with the stipulation that deviations or omissions should be justi-
   fied and approved. This same comment applies to the require-
   ments of the CMS Plan, * * *.
   Comments on Draft Permit at 4. Thus, Beazer concedes that this condition is appro-
   priate at least where the permit allows deviations in appropriate circumstances. That
   is the case here. Beazer’s request for review on this basis is also denied.
   VOLUME 4
   BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 543
   Beazer does not point to any evidence in the record, however, to
   suggest that Beazer will be unable to meet the 30-day deadline.
   Beazer’s concerns are thus purely speculative. Review is therefore
   denied.? See In re Hytek Finishes Co., RCRA Appeal No. 88-45, at
   2 (Adm’r, January 13, 1989) (Agency administrative appeal procedure
   should not be used to pursue speculative concerns).
5. Duplicative Corrective Action Requirements

Beazer contends that the permit’s corrective action requirements
improperly duplicate similar requirements imposed by the State of
Kentucky pursuant to an Agreed Order (dated June 25, 1987)2°
signed by the Koppers Company and the Commonwealth of Kentucky,
Natural Resources and Environmental Protection Cabinet (Cabinet),
and a Corrective Action Order (dated March 15, 1991)11 issued by
the Cabinet. According to Beazer, the permit requires the permittee
“to duplicate work that has already been done under the State’s
purview, especially with regard to the submission of RFI workplans
and Confirmatory Sampling workplans for units that have already
been fully characterized.” Petition for Review at 5. Beazer also argues
that the Region has failed to coordinate the permit’s corrective action
requirements with efforts already undertaken in cooperation with
the State.

As the Board stated in General Motors, supra, where a permittee
has already initiated remediation efforts, corrective action require-
ments should reflect sufficient site-specificity to avoid imposing dupli-
cative and unnecessary requirements on the permittee. Id. at 8. In
General Motors, Region V had imposed corrective action requirements
even though the permittee was already engaged in ongoing remedi-
ation efforts with the approval of State and local officials. We denied
review, however, because the Region had agreed to consider all data
generated by the permittee through prior investigations and to allow
the use of these data (where appropriate) to satisfy the permit’s

Region IV has stated that Beazer may request a modification of the permit
should it become clear that additional time will be required. Region’s Response to
Comments on the Draft Permit at 7 (Exh. C to Region IV's Response). Because the
Region is presumably aware that the amount of time required for it to process certain
types of modification requests may exceed 30 days, we assume that the Region will
not seek to penalize Beazer for a late submission of the final RFI report if it has
previously made a timely and good faith modification request seeking an extension
of time to file the final report.

10 Exh. E to Region IV's Response.

11 Exh. F to Region IV’s Response.

VOLUME 4
544 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
corrective action requirements. Id. at 9. Thus, any unnecessary dupli-
cation would be avoided.
Similarly, in the present case, the Region has stated that Beazer
may:
rely on and incorporate into the RFI Workplan or
Confirmatory Sampling Workplan any investigations
or other work performed to date. * * * Based on
the information submitted with the workplans, the
Agency may determine that a deletion of a unit from
either of the workplans is warranted, or the Agency
may limit the scope of work required under the
workplans. The Agency will then require implemen-
tation of the RFI/Confirmatory Sampling in accord-
ance with the approved workplans. In this way, the
Agency will take full advantage of the Permittees’
prior efforts.
Region’s Response at 6 (emphasis added). The Region also states
that, in accordance with a Memorandum of Agreement with the Ken-
tucky Department of Environmental Protection, it will work closely
with the Department to coordinate the State program with the federal
HSWA program and to minimize duplication of work at the site.
Id. Given the Region’s willingness to take advantage of Beazer’s prior
efforts and to consider the data generated to date in determining
whether Beazer has satisfied the permit’s corrective action require-
ments, we see no reason to grant review. See General Motors, supra,
at 9.

6. Sampling and Investigation Requirements
   Beazer objects to the requirement that it conduct an RFI or
   perform confirmatory sampling at several of the facility's SWMUs
   and areas of concern (AOCs). Specifically, Beazer contends that an
   RFI is unnecessary at the following areas: the tram draw out track,
   the drip track area, the collection sump, the swampy area, the North
   and South land farm areas, the oil and lubricant storage building,
   the product storage areas, and the old lagoon and surface impound-
   ment areas. As to the confirmatory sampling requirement, Beazer
   contends that there are several areas where it is unnecessary: the
   surge tank area, the surge tank collection sump and preheat tank,
   the basement sump, the primary separator, and the storage tank
   area.
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   BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 545
   With regard to most of these areas’? Beazer argues that the
   work conducted and the data gathered to date render the RFI or
   confirmatory sampling requirements duplicative and therefore unnec-
   essary. As the Region has stated, however, any information obtained
   from prior or ongoing remediation at these areas may be incorporated
   into the RFI or submitted for review with the Confirmatory Sampling
   Workplan. See Region’s Response at 7-10 (noting that the permittee
   should submit for review any information obtained through prior
   studies or removal activities in order to minimize duplication of
   work); Region’s Response to Comments on the Draft Permit at 9
   (Exh. C to Region IV’s Response) (“[Alny information gained from
   earlier studies * * * can and should be submitted for review as
   part of the HSWA required RFI or Confirmatory Sampling
   Workplans.”) (emphasis in original). The Region will therefore con-
   sider Beazer’s prior remediation efforts and determine whether they
   are sufficient to satisfy the permit’s corrective action requirements.
   The Region has also indicated that, to the extent possible, it will
   coordinate the federal corrective action requirements with those of
   the State. See Region’s Response to Comments at 8. We therefore
   reject Beazer’s assertion that the HSWA permit will require unneces-
   sary duplication of effort. See General Motors, supra, at 9 (denying
   review based on the Region’s willingness to consider data gathered
   from prior remediation).

The remaining areas consist of the product storage area, the
basement sump, and the storage tank area. As to the product storage
area, Beazer objects to the requirement that it perform an RFI be-
cause this site “is not a source of constituents contributing to the
general environmental condition at the Guthrie facility * * *.” Peti-
tion for Review at 8. Beazer provides no support for this assertion.
Moreover, the record on appeal indicates that stained soil was ob-
served in several locations surrounding the product storage area dur-
ing the visual site inspection (VSI). See Interim RCRA Facility As-
sessment Report at IJJ-6, C-10 (Exh. H to Region IV's Response).
Based on such observations, the Facility Assessment Report concludes
that there is a high potential for a release of creosote in the product
storage area. Id. at III-6. Given these findings (which Beazer does
not dispute), we reject Beazer’s assertion that the permit improperly
requires that an RFI be performed at this site.

12The areas include the tram draw out track, the drip track area, the collection
sump, the swampy area, the north and south land farm areas, the oil and lubricant
storage building, the surge tank area, the surge tank collection sump and preheat
tank, the primary separator, and the old lagoon and old surface impoundment areas.

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546 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
As to the basement sump area, Beazer objects to the permit
requirement that confirmatory sampling be performed there because
this area has already been extensively cleaned and is maintained
in a “dry” state. As stated above, however, the Region has agreed
to consider any information obtained from prior remediation efforts.
Thus, if Beazer’s remediation efforts have been as extensive as it
alleges, its future obligations should not be substantial. In addition,
as the Region states in its Response, whether or not the basement
sump area is currently maintained in a “dry” state is irrelevant
to whether contamination remains from past releases. Region’s Re-
sponse at 10. We therefore find nothing unreasonable in the permit’s
confirmatory sampling requirement for this area.13
Finally, the storage tank area is also subject to a confirmatory
sampling requirement to which Beazer objects. Beazer contends that
the tank has been out of service for many years and is scheduled
to be cleaned out. Beazer also states that “[t]here are no plans to
use the tank for future storage of wood treating chemicals.” Petition
for Review at 10. As the Facility Assessment Report indicates, how-
ever, this area consists of an above ground tank used to store creo-
sote, and “[s]tained soil was observed around the tank during the
VSI.” 4 Facility Assessment Report, supra, at C4. The Region there-
fore determined that confirmatory sampling was required in order
to assess the extent of any releases into the surrounding soil (if
any). Beazer has failed to convince us that there is anything unrea-
sonable about this determination.

7. Administrative Review of Permit Modifications
   Permit Condition II.I.2. bars administrative appeals from modi-
   fications to the corrective action schedule of compliance that are
   initiated by the Regional Administrator.'5 Beazer contends that the
   13We note that according to the Facility Assessment Report, Beazer’s duty to
   conduct soil sampling and analysis at the basement sump does not arise unless there
   is a negative report on the structural integrity of the unit itself. See Facility Assess-
   ment Report at III-3 (Exh. H to Region IV's Response). Moreover, although the permit
   includes this unit on a list of SWMUs requiring confirmatory sampling, the permit
   only requires that integrity testing be performed. See Permit Appendix A.3. (Exh.
   ‘A to Region IV’s Response).
   14 Beazer does not dispute this finding.
   45 This provision provides:
   Modifications [to the corrective action schedule of compliance] that
   are initiated and finalized by the Regional Administrator accord-
   ing to proper procedure, as outlined in appendix E, shall not
   be subject to administrative appeal.
   VOLUME 4
   BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 547
   Region lacks the authority to include such a provision.16 For the
   following reasons, we agree that the Region lacks the regulatory
   authority to include this abbreviated procedure in the permit.

In General Motors, supra, the Board addressed an objection to

a virtually identical permit modification provision. In that case, as
here, the abbreviated permit modification procedure allowed the Re-
gional Administrator to modify the schedule of compliance without
providing an opportunity for administrative appeal. Id. at 15-16.
As the Board stated in that case:

[T]he permit’s abbreviated modification procedure
represents a change in existing regulatory require-
Appendix E (Modification of the Corrective Action Schedule of Compliance) provides,

in part:

I. If at any time the Regional Administrator determines that modi-
fications of the Corrective Action Schedule of Compliance is nec-
essary, he or she may initiate a modification to the Schedule
of Compliance according to this procedure. If the Regional Admin-
istrator initiates a modification, he or she shall:

A. Notify the Permittee in writing of the proposed modification
and the date by which comments on the proposed modification
must be received; and

B. Publish a notice of the proposed modification in a locally
distributed newspaper, mail a notice to all persons on the facility
mailing list * * * and place a notice in the facility's information
repository * .

1. If the Regional Administrator receives no written comment
   on the proposed modification, the modification shall become effec-
   tive five (5) calendar days after the close of the comment period.

2. If the Regional Administrator receives written comment
   on the proposed modification, the Regional Administrator shall
   make a final determination concerning the modification after the
   end of the comment period.

C. Notify the Permittee in writing of the final decision.

1. If no written comment was received, the Regional Adminis-
   trator shall notify individuals on the facility mailing list in writing
   that the modification has become effective * .

2. If written comment was received, the Regional Adminis-
   trator shall provide notice of the final modification decision in
   a locally distributed newspaper * .
   II. Modifications that are initiated and finalized by the Regional
   Administrator according to this procedure shall not be subject
   to administrative appeal.

16 Beazer argues that the Region lacks both the statutory and regulatory authority
to bar administrative appeals from Agency-initiated modifications to the schedule of
compliance. Because we conclude that the Region lacks the regulatory authority to
include this permit provision, we do not reach the question of whether the Region
also lacks statutory authority.

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548 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
ments set forth in 40 C.F.R. § 270.41. Because this
procedure has not been adopted by regulation, the
Region must remove [it] from the permit * * .
General Motors, supra, at 17. We find no substantive difference be-
tween the abbreviated modification procedure in General Motors and
the one in the present case. Accordingly, the permit is remanded
and the Region is directed to remove Appendix E from the permit
and revise Permit Condition II1.2. to specify that Agency-initiated
modifications to the schedule of compliance must proceed in accord-
ance with 40 C.F.R. § 270.41.17 Id.
III. CONCLUSION
The permit is remanded and the Region is directed to reopen
the permit proceedings for the limited purpose mentioned above.!®
Appeal of the remand decision will not be required to exhaust admin-
istrative remedies under 40 C.F.R. §124.19(f)(1)(iii). On the other
27 The Region incorrectly relies on the following language in In re United Tech-
nologies Corporation Pratt & Whitney Group, RCRA Appeal No. 88-34, at 3-4 (Adm’r,
Feb. 12, 1990), to support the inclusion of the abbreviated modification procedure:
[Tjhe permit properly gives to the Region final authority to make
various interim decisions during the corrective action process, with
the ultimate corrective measures to be added to the permit
through a major modification (which will afford Petitioner an op-
portunity for administrative review at that time). * * Allowing
an administrative appeal from such interim decisions and approv-
als would lead to unnecessary and undesirable delays in the cor-
rective action process. If petitioner is dissatisfied with an interim
decision by the Region, it is free to pursue any available opportu-
nities for judicial review.
United Technologies upholds the Region's authority to make certain “interim decisions
and approvals” during the corrective action process. When read in context, the ref-
erence to the non-appealability of “such interim decisions and approvals” properly
refers to interim decisions that do not constitute permit modifications for the purpose
of 40 CFR. §270.41. In the present case, the disputed permit provisions explicitly
allow the Region to revise the permit’s existing schedule of compliance without comply-
ing with 40 C.F.R. § 270.41. Such revisions are clearly permit modifications, not “in-
terim decisions and approvals,” and must therefore be adopted through existing regu-
latory procedures. The Region's reliance on United Technologies is therefore misplaced.
38 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, eg., In
re GSX Services of South Carolina, Inc., RCRA Appeal No. 89-22, at 20 (EAB, Decem-
ber 29, 1992).
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BEAZER EAST, INC. AND KOPPERS INDUSTRIES, INC. 549
issues raised by Beazer, review is denied for the reasons set forth
above.19

So ordered.?°

19In its Petition for Review, Beazer also objected to certain language in Permit
Condition II.D.1. and to the listing of the treatment cylinders, heated storage tanks,
and the dehydrator as areas of concern. These issues have subsequently been resolved
by the parties and are not addressed in this Order. See Letter from Monica Gambino
to Suzanne Gale Rubini, Assistant Regional Counsel (December 12, 1991) (Exh. D
to Region IV's Response).

20 Beazer has requested that the Board stay the disputed permit provisions pend-
ing judicial review. Because we find no basis upon which to issue such a stay, however,
Beazer’s request is denied.

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