General Electric Company

Plain-English summary

General Electric challenged the corrective-action portion of an EPA Region I RCRA permit for its manufacturing facility in Pittsfield, Massachusetts. The appeal addressed coordination with Massachusetts and Connecticut, off-site contamination, interim measures, investigation requirements, permit deadlines, and standard permit conditions. The Environmental Appeals Board found that the federal and state coordination arrangements were adequate, that EPA could regulate off-site contamination that migrated from the facility, and that most investigation and deadline challenges did not warrant changes. It remanded two interim measures and the permit conditions drawn from 40 C.F.R. § 270.30 for reconsideration and tailoring under the corrective-action rule, reserved judgment on the permit's review mechanism, and dismissed the remaining issues.

Decision snapshot

• Cited authorities: RCRA §§ 1003(a)(7), 1006(b), 3004(u), 3004(v), 3006(b), and 3006(g)(1); 40 C.F.R. §§ 124.19, 264.101, 270.30, 271.1, 271.14, 271.3, and 271.134.
• Outcome: Two interim measures and the permit's general conditions were remanded for further consideration. Other issues were dismissed or left unresolved.
• Key point: EPA may use corrective-action permit authority for contamination that migrated from a facility, but boilerplate RCRA permit conditions in the federal HSWA portion must be supported by the corrective-action rule and tailored to that work.

Full text (EPA EAB public release)

+358 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF GENERAL ELECTRIC COMPANY
RCRA Appeal No. 91-7

REMAND ORDER

Decided November 6, 1992

Syllabus

On March 13, 1992, the Environmental Appeals Board granted review of a peti-
tion filed by General Electric Company challenging the corrective action portion of
a permit issued by EPA Region I under the Resource Conservation and Recovery
Act. In its petition, GE raises issues relating to: (1) coordination between the Region
and State agencies that are also regulating the GE facility; (2) the absence of any
review mechanism in the permit that would allow GE to challenge Regional revisions
of GE’s interim submissions; (3) the Region’s authority to impose certain corrective
action requirements in areas beyond the boundaries of the facility; (4) the need for
certain interim measures; (5) the need for certain RFI requirements; (6) certain dead-
lines in the permit; and (7) the inclusion in the HSWA portion of the permit of
“general conditions” drawn from the “boilerplate” requirements of 40 CFR § 270.30.

Held: The Board concludes that: (1) the coordination agreements between the
Region and Massachusetts and between the Region and Connecticut satisfy the Agen-
cy’s strong policy of promoting cooperation between EPA and State agencies; (2) the
Region did not exceed its statutory authority to regulate off-site contamination under
RCRA §3004(v) because the language of the permit restricts its application to off-
site contamination that migrated from GE’s facility; (3) one of the interim measures
being challenged is reasonable and need not be altered, while two of the interim
measures being challenged are being remanded for further consideration by the Region;
(4) the RFI requirements being challenged by the Region are reasonable and need
not be altered; (5) the deadlines in the permit need not be changed because, in
the absence of evidence that the Region has abused its discretion, the Board will
normally defer to the Region’s judgment as to how much time a permittee will need
to perform a particular task; (6) Section 270.30, which prescribes certain “boilerplate”
provisions that must be included in all RCRA permits, neither requires nor authorizes
the Region to include such requirements in the HSWA portion of a permit; if the
Region wants to include such a provision in the HSWA portion of the permit, it
must find authority for it under 40 CFR §264.101, the corrective action rule, and
it must tailor the provision if necessary to reflect its intended application to corrective
action activities. The Board is reserving judgment on the absence of a review mecha-
nism for Regional revisions of interim submissions.

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GENERAL ELECTRIC COMPANY 359

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

Opinion of the Board by Judge Reich:

On March 13, 1992, the Environmental Appeals Board granted
review of a petition filed by General Electric Company challenging
the corrective action portion of a permit issued by EPA Region I
under the Hazardous and Solid Waste Amendments (“HSWA”) to
the Resource Conservation and Recovery Act of 1976 (“RCRA”). The
permit, which was issued February 8, 1991, is for GE’s manufacturing
facility in Pittsfield, Massachusetts.1 At the request of the Agency’s
Judicial Officer, the Region submitted a response to the petition.2
GE also submitted a reply brief, and both the Region and GE submit-
ted supplementary briefs in response to the Board’s grant of review
in this case. For the reasons set forth below, we are remanding
certain issues raised by GE for reconsideration by the Region, and
we are dismissing others.

I. BACKGROUND

GE’s Pittsfield facility, which encompasses 250 acres, is adjacent
to the Housatonic River. Unkamet Brook flows through the facility
and empties into the Housatonic River. The property slopes towards
the Housatonic River and includes portions of the river’s and
Unkamet Brook’s 100-year floodplains. Regionally, the direction of
groundwater flow is primarily toward the river with local variations.
GE has owned the property since 1903. The facility is divided into
three major production areas: the Transformer Division; the Ord-
nance Division; and the Plastics Division. At the facility, GE has
manufactured or is still manufacturing electrical transformers, ca-
pacitors, regulators, synthetic resins, molding compounds, missile-
guidance systems, and other ordnance-related systems. From 1932
to 1977, GE used polychlorinated biphenyls (“PCBs”) in the operation
of its transformer plant to make pyranol, an insulating oil. Along
with PCBs, other hazardous wastes were generated at the facility
and disposed of in a variety of ways on and off-site. Petition for
Review, Exhibit C, EPA Fact Sheet, at 3.

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

2 At that time, the Agency’s Judicial Officers provided support to the Administrator
in his review of permit appeals. Subsequently, effective on March 1, 1992, the position
of Judicial Officer was abolished, and all cases pending before the Administrator,
including this case, were transferred to the Environmental Appeals Board. See 57
Fed. Reg. 5321 (Feb. 18, 1992).

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360 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The areas covered by the Region’s HSWA permit are also subject
to regulation by the Massachusetts Department of Environmental
Protection (“MDEP”) under a detailed State regulatory scheme set
forth in the Massachusetts “Superfund” law (Mass. Gen. L. Chapter
21E) and the Massachusetts Contingency Plan (MCP), 310 Code of
Mass. Regs. (CMR) 40.001 et seq. Like the RCRA corrective-action
process, that State regulatory scheme sets forth a phased process
requiring investigations of the sites, studies of remedial options, im-
plementation of remedial actions, and the performance of short-term
measures in the interim, as necessary. Pursuant to those State au-
thorities, GE and the MDEP have executed two Consent Orders re-
quiring detailed investigations, remedial-action studies, and short-
term measures for the sites involved here, including both the GE
Facility and the Housatonic River, except for the portion of the river
in Connecticut. With respect to that portion of the river, GE has
entered into a Cooperative Agreement with the Connecticut Depart-
ment of Environmental Protection requiring GE to undertake an in-
vestigative program.

On March 13, 1992, the Environmental Appeals Board granted
review of the petitions for review filed by GE and Massachusetts,
and oral argument was scheduled on certain issues involving Federal/
State coordination. However, when the parties settled the most sig-
nificant issues scheduled for oral argument, the Board canceled the
oral argument.

II. DISCUSSION

Once the Board has granted review under 40 CFR § 124.19(a),
it will overturn a Regional Administrator’s permit decision if the
Board concludes that: (1) there is an error of fact or law in the
Regional Administrator’s decision; (2) for important policy reasons,
the Regional Administrator should have reached a different result;
or (3) the Regional Administrator abused his or her discretion. On
review, the burden is on the petitioner to show that the Regional
Administrator’s decision should be overturned.

In its petition, GE raises issues relating to: (1) coordination be-
tween the Region and Massachusetts; (2) the absence of any review
mechanism in the permit that would allow GE to challenge Regional
revisions of GE’s interim submissions; (3) the Region’s authority to
impose certain corrective action requirements in areas beyond the
boundaries of the facility; (4) the need for certain interim measures;

3 Massachusetts has since withdrawn its petition for review.

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GENERAL ELECTRIC COMPANY 361

(5) the need for certain RFI requirements; (6) certain deadlines in
the permit; and (7) the inclusion in the HSWA portion of the permit
of “general conditions” drawn from the “boilerplate” requirements
of 40 CFR § 270.30. Each of these issues is discussed below.4

A. Federal / State Coordination

GE states that the Massachusetts Consent Orders address the
same areas and types of activities covered by the EPA permit. GE
is concerned that, if EPA and Massachusetts do not coordinate their
efforts, GE will be faced with conflicting and duplicative require-
ments. In recognition of the concerns raised by GE, the State of
Massachusetts and the Region recently entered into a Memorandum
of Understanding (“MOU”), which provides several mechanisms to
promote cooperation and coordination between the two jurisdictions.
See June 26, 1992 letter from Ken Nickolai, Assistant Regional Coun-
sel, to James W. Black, Counsel to the Environmental Appeals Board
(enclosing Memorandum of Understanding). Under the MOU, the par-
ties agree that: (1) each party will address and respond to requests
by the other party concerning the approval or disapproval of propos-
als, reports, and plans submitted by GE; (2) each party will identify
a key technical staff person who will serve as the initial point of
contact for implementation of the MOU and who will confer with
his or her counterpart at the other agency at least once a month;
(3) Massachusetts’ key technical staff may participate fully in EPA’s
technical review process; (4) each party agrees to provide the other
party with any comments on proposals, reports and plans submitted
by GE within 30 days of receipt; (5) each party agrees to transmit
by facsimile or by some other method any proposed approvals or
disapprovals of plans, reports, and proposals submitted by GE so
that the other party will have seven working days prior to public
issuance to review such document; and (6) each party will follow
the dispute resolution procedures set out in the MOU for resolving
disputes between the parties involving approval or disapproval of
reports, plans, and proposals submitted by GE.

The Memorandum of Understanding also provides that nine
months after the effective date of the MOU and annually thereafter,
the parties will evaluate and discuss the effectiveness of the MOU
in achieving the environmental objectives of the Permit and the Con-
sent Orders and the implementation schedules of the MOU. If, after
such evaluation, either side is dissatisfied with the effectiveness of

4In its petition, GE raised other issues for review that were subsequently settled
and withdrawn.

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362 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the MOU in achieving such environmental objectives or implementa-
tion schedules, either may call a meeting to discuss methods to im-
prove the effectiveness of the MOU and to consider alternative means
of cooperation presented by the other. If after such a meeting, either
side continues to be dissatisfied with the effectiveness of the MOU
in achieving the environmental objectives or implementation sched-
ules, either agency may provide the other with written notice of
its withdrawal from the MOU. Such withdrawal will be effective
thirty days from the date such notice is received by the other party.
Memorandum of Understanding, Paragraph 14, at 5-6.

In a June 29, 1992 letter to the Board, counsel for GE argues
that this MOU is flawed because of the provision allowing the parties
to withdraw from the agreement if they cannot resolve differences
between themselves. GE urges the Board to retain continuing juris-
diction in case the agreement fails to ensure coordination or in case
the parties withdraw from the agreement. If the Board is not willing
to retain jurisdiction over the matter, GE urges the Board to direct
the Region to seek a revised MOU that will offer more protection
for GE. Specifically, GE proposes that the MOU incorporate what
it calls the “lead agency” approach. Under that approach, the MOU
would provide as follows: (1) the Region’s permit will be suspended,
and GE will comply with the Massachusetts consent orders; (2)
MDEP will serve as the lead agency for purposes of regulating the
investigations and remedial actions at the site, while the Region
will be kept informed and given an opportunity to comment on sub-
missions by GE and directives by MDEP; (3) if at any time the
Region makes a finding that MDEP’s implementation of the MCP
at the sites is not adequate to comport with the overall objectives
of the RCRA corrective action program, the Region will notify MDEP
of the deficiency, and if, after a reasonable period of time, the Region
determines that the deficiency has not been corrected, EPA can
reassert its corrective-action authority under RCRA and activate its
corrective action permit; (4) if the Region reasserts its authority,
the Region will thereafter serve as the lead agency, and MDEP will
serve in the same reviewing role formerly played by the Region.

As an alternative to the lead agency approach, GE suggests other
revisions of the MOU that it believes will address its concerns in
a satisfactory manner. For example, GE believes that the MOU
should provide that, for a given area subject to the MOU, GE will
not be required to proceed to a subsequent step in the process until
both the MDEP and Region I have approved the prior submission.
Another of GE’s proposed revisions would provide that, if one agency

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GENERAL ELECTRIC COMPANY 363

but not the other issues its approval of a GE submission within
the specified time-frame, and if GE seeks but cannot obtain an exten-
sion of time from that agency to perform the next task, then the
agency that had not yet issued a decision would agree that GE
may go forward under the decision that had been issued. This agency
would not be able to issue a separate approval/disapproval decision
on the submission at some later time requiring additional or different
work.

The initial question before us is whether the Region is obligated
legally or as a matter of policy to seek revision of its MOU with
Massachusetts to incorporate the changes suggested by GE or any
other changes. For the following reasons, we do not believe that
the Region has any such obligation. First, there is no legal basis
for requiring the Region to enter the kind of MOU that GE proposes.
Neither the statute, nor the implementing regulations, nor the pro-
posed corrective action regulations contain any such legal require-
ment. It is true that the statute lists as one of its objectives:

[E]stablishing a viable Federal-State partnership to
carry out the purposes of this chapter and insuring
that the Administrator will, in carrying out the pro-
visions of subchapter III of this chapter give a high
priority to assisting and cooperating with States in
obtaining full authorization of State programs under
subchapter III of this chapter.

RCRA § 1003(a)(7), 42 U.S.C. 6902. However, the Federal-State part-
nership referred to in the quoted passage is one in which the Agency
will assist the States in their obtaining authorization and in imple-
menting RCRA. While Section 1003(a)(7) supports the Agency’s policy
on cooperation as discussed below, the quoted passage certainly can-
not be read to require an MOU between the Region and Massachu-
setts to coordinate implementation of RCRA and the State superfund
statute. In fact, the agreement between the Region and Massachu-
setts, being focused specifically on the GE facility, goes far beyond
the level of cooperation envisioned in Section 1003(a\7).5

5In support of its position that the Region is obligated to coordinate its efforts
with the States, GE also cites RCRA §1006(b), 42 U.S.C. §6905, which provides
that the Administrator must integrate implementation of RCRA with implementation
of other federal statutes that grant regulatory authority to the Administrator. We
fail to see how this supports the argument that the Administrator must coordinate
implementation of RCRA with state implementation of state statutes.

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364 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

While the Region is under no legal obligation to enter into a
memorandum of understanding, the Agency has adopted a strong
policy of promoting Federal/State cooperation of the kind at issue
here. For example, in a recent study on the implementation of RCRA,
the Agency’s Office of Solid Waste & Emergency Response (“OSWER”)
recommends that EPA not only encourage States to become author-
ized for RCRA corrective action, but also “[a]cknowledge the work
states do under their own corrective action authorities, and promote
joint EPA/state cleanup activities with the goal of getting more clean-
up done.” The Nation’s Hazardous Waste Management Program at
a Crossroads: The RCRA Implementation Study, Office of Solid Waste
& Emergency Response, EPA/530-sw-90-069, at 84 (July 1990).
OSWER also recommends that the Agency “[c]ut back on oversight
for both authorized and unauthorized states to prevent duplication
of oversight.” Id. The policy is also reflected in the preamble to
the Codification rule for the 1984 RCRA Amendments:

States with authorized RCRA programs may already
have requirements similar to those in today’s
rule. * * * Of course, States with existing [State]
standards may continue to administer and enforce
their standards as a matter of State law. In imple-
menting the Federal program, EPA will work with
States under cooperative agreements to minimize du-
plication of efforts. In many cases, EPA will be able
to defer to the States in their efforts to implement
their programs, rather than take separate actions
under Federal authority.

52 Fed. Reg. 45796 (December 1, 1987).

In this case, the Region has clearly acknowledged this policy,
and the MOU reached by the Region and Massachusetts fully satisfies
the Region’s obligation to coordinate its efforts with those of the
State. GE objects to the MOU because, in its view, the agreement
does not ensure a perfect coordination between the parties.

We agree that the MOU reached by the Region and Massachu-
setts does not provide an ironclad guarantee that there will never
be a problem, but we also believe that such a guarantee could only
be bought at an unacceptable price: the Region would have to com-
promise its ability and responsibilities to carry out the dictates of
the RCRA statute, a compromise the Agency is not authorized to

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GENERAL ELECTRIC COMPANY 365

make.6 As GE acknowledges in its petition, “EPA has a duty under
HSWA to ensure, through the corrective-action permit, that all re-
leases of hazardous constituents from SWMUs and other areas legiti-
mately included in the permit are adequately addressed, and that
EPA cannot be bound in this respect by the State regulatory pro-
grams.” Petition for Review, at 21.

We believe that the Regions should be accorded a large measure
of discretion in determining the appropriate level of and mechanism
for cooperation with State programs. It is sufficient that the Region
has evidenced a good faith willingness to coordinate its efforts with
those of Massachusetts consistent with Agency policy. Having made
that determination, we will not second-guess the Region’s judgment
as to the particular mechanism used to effect such cooperation.

As for the third option suggested by GE—retaining jurisdiction
over the case—we conclude that such an approach would not be
appropriate. The purpose of this Board is to determine whether the
permit was appropriately issued. The Board has no oversight respon-
sibility for the implementation of a validly issued permit. Once we
have satisfied ourselves of the Region’s good faith willingness to co-
operate, and thus its compliance with Agency policy in the issuance
of the permit, we have no basis for retaining jurisdiction to address
any implementation issues that may arise.

In its petition for review, GE similarly argues that the Agency's
corrective action permit as it applies in Connecticut overlaps with
the Connecticut Cooperative Agreement. GE believes that the Region
and Connecticut should coordinate their efforts to save GE from fac-
ing duplicative or conflicting requirements. The State of Connecticut
also filed a petition for review making the same argument. We are
dismissing this issue, however, for two reasons. First, GE has pro-
vided scant evidence of the conflicts and duplication between Con-
necticut requirements and Agency requirements that it believes would
occur in the absence of a coordination mechanism in the permit.
Second, Connecticut has now withdrawn its petition for review, be-
cause it has entered into a settlement agreement with the Region.
Counsel for Connecticut states that the agreement “substantively re-
solves Connecticut’s concerns raised in the captioned petition [for

6The vehicle created by the statute to eliminate conflict and duplication is the
State authorization process, i.e., Massachusetts seeking and obtaining authorization
from EPA to assume responsibility for issuing the corrective action portions of RCRA
permits. Until a State applies for and receives such authorization, the statute assigns
that responsibility to the Agency. RCRA § 3006(g)(1), 42 U.S.C. §6926(g)(1). The Agency
may not abdicate that responsibility.

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366 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

review].” See August 17, 1992 letter from Richard F. Webb, Connecti-
cut Assistant Attorney General, to James W. Black, Counsel to the
Environmental Appeals Board. Connecticut’s statement that its con-
cerns have been satisfied persuades us that the Region has success-
fully fulfilled its obligation to coordinate its efforts with those of
Connecticut. Accordingly, this issue is dismissed.

B. Regional Revisions of Interim Submissions

GE argues that the permit allows the Region to impose substan-
tial obligations on GE with no mechanism for review. GE explains
that the permit sets up an extended schedule of proposals and ap-
provals prior to the Region’s ultimate selection of the corrective meas-
ures to be implemented. If the Region disapproves a proposal, it
has authority under the permit to specify the deficiencies and require
GE to submit a modified proposal. If the Region then disapproves
the modified proposal, the Region may either require further modi-
fications or else make such modifications as it deems appropriate.
Upon approval by the Region, the modified proposal will become
an enforceable part of the permit. GE complains that if it disagrees
with the modifications imposed or required by the Region, the permit
provides no procedure for GE to obtain review of the modifications.
GE argues that the absence of a review mechanism in the permit
is contrary to EPA policy and violates GE’s right to due process
of law under the U.S. Constitution.

As GE recognizes in its Supplementary Brief, this issue was
addressed in In re W.R. Grace & Company, RCRA Appeal No. 89-
28 (March 25, 1991).7 There, the Administrator upheld a permit
that, like the permit at issue here, did not contain a review mecha-
nism for Regional revisions of interim submissions. However, the
Board recently granted review and scheduled oral argument on issues
that bear on the scope and effect of the Grace decision. See In re
Allied-Signal, Inc., Metropolis, Illinois), RCRA Appeal No. 92-1 (EAB,
November 3, 1992) (Order Granting Review and Scheduling Oral
Argument). The Board granted review because it was concerned that
Grace may require further explication. The Order Granting Review
and Scheduling Oral Argument presents the following issues that

7Among the interim submittals that GE is required to make under the permit
are an interim measures proposal and an interim measures report. Petition for Review,
Exhibit A, Final Permit, at 108 - 113. Although the interim submittals at issue
in Grace did not include any relating to interim measures, we believe that the rationale
articulated in that decision applies with equal force to interim submittals relating
to interim measures.

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GENERAL ELECTRIC COMPANY 367

the parties in Allied-Signal should address in their briefs and should
be prepared to discuss at oral argument:

1. The Administrator ruled in Grace that a Region’s
   revision of an interim submission is not a modifica-
   tion of the permit for purposes of the formal modi-
   fication rule at 40 CFR §270.41. In contrast, the
   Region treats the selection of a corrective measure
   as a modification of the permit that is subject to
   the formal modification rule. What is the legal or
   policy basis for treating the selection of a corrective
   measure as a permit modification, while not treating
   the Region’s revision of an interim submission as
   a permit modification? In other words, how does the
   Agency decide that some, but not all, new permit
   terms will be incorporated into the permit through
   means of the formal permit modification procedures?

2. The Grace decision requires that in the event of
   a Regional revision of an interim submission, the
   Region must provide the permittee with some sort
   of informal “hearing” procedure in order to satisfy
   the requirements of procedural due process. Would
   the following procedure satisfy the requirements of
   procedural due process: (i) the Region must give a
   reasoned explanation in writing of its revision; (ii)
   the permittee must be provided with an opportunity
   to demonstrate, through written comments, that the
   Region’s proposed revision is unnecessary; and (iii)
   the Region must consider the permittee’s comments
   and provide a written response to them?

3. If the informal hearing procedure outlined in para-
   graph 2 would not satisfy the requirements of proce-
   dural due process, what additional Agency proce-
   dures would be necessary to satisfy those require-
   ments?

4. If the Board determines that a particular informal
   hearing procedure is necessary to satisfy the require-
   ments of procedural due process, should the Board
   require the Region to incorporate that procedure in
   the permit?

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368 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

5. Does the Grace decision, by holding that the revi-
   sion of an interim submission is not a permit modi-
   fication under 40 CFR §270.41, unlawfully deprive
   permittees of a statutory right to judicial review by
   preventing permittees from invoking Section 7006(b),
   which provides that any interested person may ob-
   tain judicial review of the Administrator’s action
   modifying the permit in the U.S. Court of Appeals?

6. If a permittee is unable to obtain judicial review
   under Section 7006(b), when and under what cir-
   cumstances could a permittee obtain judicial review
   of a Regional revision of an interim submission?

In light of the grant of review in the Allied-Signal case, we
are reserving judgment on this issue. The parties in this proceeding
may if they wish file briefs addressing any or all of the issues des-
ignated in the Order Granting Review and Scheduling Oral Argument
in the Allied-Signal case. The briefs should be filed not as amicus
briefs in the Allied-Signal case, but as supplementary briefs in this
case. Any such briefs should be submitted by December 9, 1992.

C. Jurisdiction Over Off-Site Areas

Newell Street Oxbow: From the 1930s to the late 1950s, a former
marsh area near the Housatonic River was filled with debris and
solid and hazardous waste. Part of the filled area was made into
a parking lot and is part of the GE Facility (designated SWMU
G-6). The rest of the filled area, which is contiguous to the GE
Parking Lot, is beyond the boundaries of the GE Facility (“Newell
Street Oxbow area”). SWMU G-6 and the Newell Street Oxbow are
both located in a part of the facility that the permit designates
“Area 5.” Area 5 also includes SWMU G—21, which is not relevant
here. The permit requires GE to conduct preliminary RFI investiga-
tions not only for the GE Parking Lot, but also for any parts of
the Newell Street Oxbow area to which contamination from the GE
Parking Lot is migrating or has migrated. Petition for Review, Ex-
hibit A, Final Permit, at 15. The permit also imposes an interim
measure requiring GE to remove all high concentrations (“hot spots”)
of PCB-contaminated soil from SWMU G-6. Petition for Review, Ex-
hibit A, Final Permit, at 111.

The Newell Street Oxbow area is not a SWMU. The permit

defines SWMU as “any unit at the facility which contains or contained
solid and/or hazardous waste,” Petition for Review, Exhibit A, Final

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GENERAL ELECTRIC COMPANY 369

Permit, at 7 (emphasis added), and defines “facility” as “all contig-
uous land, and structures, other appurtenances, and improvements
on the land, under the control of the owner or operator on November
8, 1984.” Id. at 5 (emphasis added). It is undisputed that the Newell
Street Oxbow was neither owned nor controlled by GE on November
8, 1984. Nevertheless, the Agency has authority under RCRA
§3004(v), 42 U.S.C. 6924(v), and 40 CFR §264.101(c) to impose cor-
rective action requirements for contamination beyond the boundaries
of the facility if the contamination migrated to the off-site area from
the facility. In its petition, GE argues that “Region I’s response to
comments makes quite clear that it intends [the scope of the RFI
requirements] to cover portions of the Newell Street Oxbow beyond
the GE Parking Lot and thus beyond the Facility boundary.” Petition
for Review, at 36. A review of the Region’s response to comments
on this issue confirms that the Region does believe that contamina-
tion from the GE Parking Lot has migrated to portions of the Newell
Street Oxbow area. Petition for Review, Exhibit B, Region’s Respon-
siveness Summary, at 3-134—-3-135. GE contends that the contami-
nation found in the Newell Street Oxbow area did not migrate from
the GE Parking Lot but resulted instead from the same filling activi-
ties that caused contamination in the GE Parking Lot. GE asserts,
therefore, that the Region does not have authority under RCRA
§ 3004(v) to require corrective action for contamination in the Newell
Street Oxbow area.

The permit provisions being challenged impose preliminary RFI
requirements for Area 5, and the permit describes Area 5 as follows:

This area includes SWMU G-6 and SWMU G-21
and surrounding areas to which releases of hazard-
ous waste and/or hazardous constituents originating
on GE property are migrating and/or have migrated.
Both SWMU G-—6 and SWMU G-—21 are former oxbow
or marsh areas which have been filled with solid
waste and debris. Investigations to date indicate
wastes containing hazardous constituents have been
disposed of in the area.

Petition for Review, Exhibit A, Final Permit, at 15. Thus, the permit
specifically defines Area 5 as including surrounding areas to which
there is or has been migration. As such, it clearly does not cover
areas to which contamination from the GE Parking Lot has not mi-
grated. Accordingly, if contamination from the GE Parking Lot has
not migrated into the Newell Street Oxbow area, the RFI require-
ments do not apply to the Newell Street Oxbow area. Thus, the

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370 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

RFI requirements challenged by GE, as written, do not exceed the
Agency’s authority under Section 3004(v) and Section 264.101(c),
since the requirements only cover areas to which hazardous wastes
from the GE Parking Lot have migrated. As we read the petition,
however, GE is not really calling into question the propriety of the
permit as written. Rather, GE is challenging the statements in the
Region’s response to comments expressing the Region’s intended im-
plementation of the permit. As noted earlier, however, the role of
the Board is to determine whether the permit was appropriately
issued. The Board has no oversight responsibility for the implementa-
tion of a validly issued permit.7

The permit also imposes an interim measure requiring GE to
“propose a plan to remove all high concentrations (hot spots’) of
PCB-contaminated surficial soil from SWMU G-6 (Newell Street-GE
Parking Lot Site).” GE makes the same jurisdictional argument about
the interim measure as it makes about the RFI requirements.

It is not clear whether the term “SWMU G-6” in the interim
measure refers only to the GE Parking Lot, or whether it refers
to the GE Parking Lot and off-site portions of the Newell Street
Oxbow area. The permit defines “SWMU” as “any unit at the Facil-
ity,” Id. at 7, so under a literal reading of the permit, the term
“SWMU G-6” would only refer to the GE Parking Lot since that
is the only part of the filled area “at the Facility.” Read in the
context of the entire permit, however, we believe such a literal read-
ing is not justified. As noted earlier in the discussion of the RFI
requirements relating to Area 5, the Region is concerned not only
with contamination of the GE Parking Lot but also with contamina-

8An argument similar to GE’s was considered in In re BFGoodrich Company,

RCRA Appeal No. 89-29 (December 19, 1990). In that case, BFGoodrich challenged
an assertion made by Region IV in its response to comments on the draft permit
that the permit definition of “SWMU?” is broad enough to include an area contaminated
by routine, systematic, and deliberate discharges from process areas. The Adminis-
trator determined that the issue was not yet ripe for review, observing that:

[T]he Agency’s rules provide that petitioners may seek review

of permit conditions, not isolated assertions in the administrative

record regarding the Region’s intended application of the permit.

See 40 CFR §124.19(a). Because BFGoodrich’s petition does not

directly call into question the propriety of any specific permit

term in this regard, the issue may not be raised on appeal of

the permit.
Id. at 4. The same reasoning applies to the RFI requirements challenged by GE.
See also In re Midwest Steel Division, National Steel Corp., RCRA Appeal No. 88-
38, at 2-3 (August 27, 1990)\Region’s intended application of a permit term prohibiting
the acceptance of off-site waste is not subject to review under § 124.19).

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GENERAL ELECTRIC COMPANY 371

tion that is migrating or has migrated from the GE Parking Lot
to the Newell Street Oxbow. Moreover, immediately following the
term “SWMU G-6” in the interim measure are the words “(Newell
Street-GE Parking Lot Site),” suggesting that the interim measure
is meant to cover portions of the Newell Street Oxbow area. Accord-
ingly, we read the interim measure as applying to areas beyond
the GE Parking Lot. However, because the Agency could lawfully
regulate only those off-site areas to which contamination from the
GE Parking Lot is migrating or has migrated, we read the interim
measure as covering only those parts of the Newell Street Oxbow
to which contamination from the GE Parking Lot is migrating or
has migrated. So interpreted, the interim measure does not exceed
the Agency’s authority under RCRA §3004(v), since it only applies
to those “hot spots” in the Newell Street Oxbow that migrated to
their present position from the GE Parking Lot. Under such an inter-
pretation, GE’s only remaining concern is the Region’s intended im-
plementation of the interim measure. As noted above, however, the
Board has no oversight responsibility for the implementation of a
validly issued permit.

Allendale Elementary School: The permit requires as an interim
measure that GE propose a plan for taking soil samples on the
grounds of the Allendale Elementary School, for erecting a continuous
chain-link security fence there, and for remediation of surficial soil
contamination at the school yard. The Allendale School is located
to the north of, and across the road from, the GE Facility. The
school is located near SWMU G-—5 (“the Building 78 Landfill”), which
according to the Region has been in use since 1903 as a disposal
unit for construction debris and other solid and hazardous waste,
including PCBs. The Region states that soil sampling at the landfill
has confirmed the release of PCBs and raises the potential of en-
trained PCB particulates being transported by wind to the Allendale
property. The Region states further that it has confirmed the pres-
ence of PCBs in the surface and subsurface soils of the school yard,
in some instances up to 1800 ppm.

GE challenges the Region’s assertion of jurisdiction over the
Allendale School, arguing that the PCBs at the Allendale School
did not migrate from the Building 78 Landfill but resulted from
historic filling activities. Since the filing of GE’s reply brief, however,
GE represents that it has completed remediation of the Allendale
School Yard under a short-term measure plan approved by the
MDEP. In response to this remediation, the Region has agreed to
delete the interim measure dealing with the Allendale School Yard.

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372 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

However, because the Region has stated its intention to seek a modi-
fication of the permit that would include the school within Area
2, for which RFI requirements have been prescribed, GE wants the
Board to hold that EPA’s jurisdiction under the permit does not
extend to the school yard. This we decline to do, for the interim
measure is the only part of the permit relating to the Allendale
School and if that is deleted, there is no longer a permit term to
review. Accordingly, we are dismissing this issue as moot. If the
permit is modified, as GE expects it to be, that will be the time
to file an appeal.

D. Interim Measures

Under the permit, GE is required to submit an Interim Measures
Proposal for review and approval by the Region, detailing the meth-
odology and procedures to be followed in order to complete 13 interim
measures specified in the permit. GE challenges three of those in-
terim measures. Each is discussed below.

Interim Measure 8: This interim measure requires GE to propose
a plan for removing high concentrations (“hot spots”) of PCB-contami-
nated surficial soil from SWMU G-6 (Newell Street-GE Parking Lot
site). As discussed in the previous section of this opinion, we have
interpreted this interim measure as covering only those hot spots
outside the facility that resulted from the migration of contamination
from the GE Parking Lot. GE argues that the PCB hot spots do
not present an imminent or substantial threat to human health or
the environment. It argues further that, even if some interim meas-
ure is required, there is no justification for requiring removal of
the PCB-contaminated surficial soil. GE believes that a combination
of covering and fencing the hot spots would adequately address the
Region’s concerns about exposure. GE also points out that the Massa-
chusetts DEP has recently approved a short-term measure proposed
by GE that calls for a combination of fencing, restricting access to,
and paving parts of the Newell Street Oxbow that contain elevated
PCB levels in the surficial soil.

The Region responds that the Agency does not need to show
an “imminent or substantial threat” before imposing an interim meas-
ure. The Region believes that the proper standard for interim meas-
ures was articulated by the Administrator in In re BFGoodrich Com-
pany, RCRA Appeal No. 89-29 (December 19, 1990). In that case,
the permittee challenged an interim measure requiring it to contain
a plume of groundwater contamination. BFGoodrich argued that the
plume did not pose an immediate threat to human health and the

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GENERAL ELECTRIC COMPANY 373

environment. The Administrator rejected this argument, making the
following observations:

BFGoodrich is correct that the use of interim meas-
ures should be based on the immediacy and mag-
nitude of the threat involved (see 55 Fed. Reg. at
30839), but the requisite degree of immediacy that
justifies such measures depends in part on the
amount of time needed to establish and implement
permanent corrective action measures. * * * The
Agency need not wait until human or environmental
receptors are actually exposed to dangerous levels
of contamination before it concludes that the risk
posed by a contaminant plume is of sufficient imme-
diacy and magnitude to warrant interim measures.

Id. at 8.

The Region also cites the proposed Subpart S rule, which con-
tains a list of factors that the Region may consider in determining
whether an interim measure is necessary. 55 Fed. Reg. 30,880 (July
27, 1990) (proposed §264.540).9 The Region believes at least four
of those factors support imposition of the interim measure at issue.
The first factor is the “[t]ime required to develop and implement
a final remedy.” Id. (proposed § 264.540(b)(1)). The Region argues
that, given the complexity of the GE site and the nature and extent
of work being implemented under both state and federal authorities,
final remediation is likely to be many years away. The second factor
is “[a]ctual or potential exposure of nearby populations or environ-
mental receptors to hazardous wastes (including hazardous constitu-
ents).” Id. (proposed § 264.540(b)(2)). The Region argues that this
factor supports an interim measure because of the continued contami-
nation of the Housatonic River and its dependent ecosystem. The
third factor is the “[p]resence of high levels of hazardous wastes
(including hazardous constituents) in soils largely at or near the
surface, that may migrate.” Id. (proposed § 264.540(b)(6)). The Region
argues that this factor is important because of the proximity of local
businesses, social clubs, and residences. The last factor is “[o]ther
situations that may pose threats to human health and the environ-
ment.” Id. (proposed § 264.540(b)(9)). The Region notes that in the

While the Subpart S rule has not as yet become final, it constitutes the Agency's
most recent, comprehensive articulation of its views regarding corrective action under
Section 3004(u). In re Sandoz Pharmaceuticals Corporation, RCRA Appeal No. 91-
14, at 9 (EAB, July 9, 1992); In re W. R. Grace & Company, RCRA Appeal No.
89-28, at 2 (Administrator, March 25, 1991).

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374 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

preamble to the proposed rule, an example is given of the type of
situation covered by this last factor. The example is a situation in
which surficial soil contamination is adjacent to a drinking water
source. 55 Fed. Reg. 30,839 (July 27, 1990). The Region argues that
the example is similar to the situation at issue here because surficial
soil contaminated with high concentrations of PCBs is close to the
Housatonic River. The Region asserts that, while not a drinking
water source, the river supports a vast ecosystem, and
bioaccumulation of PCBs in fish and other aquatic life has been
documented.

The Region also argues its selection of excavation as the pre-
scribed method of dealing with the hot spots is the kind of technical
decision well within the purview of Regional discretion. The Region
rejects the notion that it should follow the lead of Massachusetts,
which has required GE to pave, fence, and restrict access to the
hot spots. The Region argues that there is no legal basis for requiring
the Region to follow state-approved measures that are less stringent
than Federal requirements.

After carefully considering the arguments presented by the par-
ties, we conclude that the interim measure at issue need not be
changed. We believe that the immediacy and magnitude of the threat
posed by the hot spots are sufficient to warrant the imposition of
an interim measure. As the Administrator noted in the BFGoodrich
decision, whether a threat is sufficiently immediate depends on the
time before a permanent remedy can be implemented. We are per-
suaded that the Region has carefully considered the immediacy and
magnitude of the threat posed by the hot spots. We also agree that
the factors listed in the proposed Subpart S rule and cited by the
Region in support of its imposition of an interim measure apply
here. In particular, we are persuaded that the high concentration
of PCBs in surficial soil in close proximity to the Housatonic River
and the time before a permanent remedy can be implemented weigh
heavily in favor of an interim measure. We also note that the interim
measure at issue meets three of the criteria for imposing interim
measures set out in the Agency's guidance document on RFIs. RCRA
Facility Investigation (RFI) Guidance, EPA 580/SW-89-031, Volume
I, at 8-27 (May 1989). Specifically, the following factors listed in
the guidance document support imposition of the interim measure
at issue: (1) “Actual or potential exposure of nearby human popu-
lations or animals to hazardous wastes or constituents;” (2) “Actual
or potential contamination of drinking water supplies or sensitive
ecosystems;” and (3) “Presence of high concentrations of hazardous

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GENERAL ELECTRIC COMPANY 375

wastes or constituents in soils largely at or near the surface that
may migrate readily to receptors, or to which the public may be
inadvertently or unknowingly exposed.” Id.

We also conclude that the Region’s selected method of dealing
with the hot spots—excavation—is not unreasonable. The Region’s
selection of a method is the kind of technical decision that is best
decided on the Regional level, and absent some compelling cir-
cumstance, we are inclined to defer to it. GE has not presented
any compelling reasons not to defer to the Region’s decision in this
instance. Accordingly, this issue is dismissed.1°

Interim Measure 4: This interim measure requires GE to develop
a plan to prevent infiltration of a groundwater contaminant plume
into Unkamet Brook and the Housatonic River. The Fact Sheet issued
by the Region states that, in the relevant area:

(Vlolatile organic constituents including benzene,
chlorobenzene, and methylene chloride have been de-
tected in the groundwater. * * * The 1986 ground-
water monitoring results indicated volatile organic
constituents have reached the Housatonic River from
the East. Plant/Unkamet Brook area plume. Accord-
ing to GE’s “Report on Past Hazardous Waste Mon-
itoring and Remedial Actions,” analyses of Unkamet
Brook also indicate the sediments are contaminated
with PCBs,

Petition for Review, Exhibit C, Document 1, Fact Sheet, at 4-5.
In its response to the petition for review, the Region explains that
Unkamet Brook lies within a plume of contamination and acts as
a migration pathway for contamination into the Housatonic River.
The Region points out that no provision has been made to intercept
the plume prior to its discharge into the river. The Region states
that the interim measure being challenged here, together with other
interim measures, are designed to prevent further contamination of
the river system, which the Region describes as “an extremely high
priority.” Region’s Response to Petition for Review, at 56. The Region
notes that its approach is consistent with the recommendations made

10The conflict between the Region’s approach (i.e., excavation) and MDEP’s ap-
proach (i.e., fencing, paving, and restricting access) would appear to be the kind
of conflict that triggers application of the MOU between the two agencies. See Section
A supra.

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376 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

in the RCRA Implementation Study, at 81.11 In its response to com-
ments, the Region describes the contaminant plume as an “imminent
threat to the Unkamet Brook, the Housatonic River and their recep-
tors.” Petition for Review, Exhibit B, Region’s Responsiveness Sum-
mary, at 3—157.

GE challenges the assertion that the plume poses an imminent
threat. It argues that the 1986 groundwater study relied upon by
the Region in the Fact Sheet actually reaches a conclusion that sup-
ports GE’s position: the contribution of VOCs by the plume to the
River and the Brook is negligible. GE quotes the 1986 study as
concluding that “[t]he calculated VOC content in the Housatonic River
after mixing with the plume discharge is less than 1 ug/l (below
the detection limit),” and that “[t]he levels of VOCs in Unkamet
Brook surface water do not represent a hazard to aquatic life because
the results are below the USEPA Ambient Water-Quality Criteria
for acute toxicity.” Petition for Review, at 51 (quoting 1986 study).
GE also cites a 1988 study performed by Geraghty & Miller, which
according to GE concluded that the contaminant plume “results in
an estimated groundwater contribution of less than 1.0 ppb (ug/l)
total VOCs to the Housatonic River (accounting for dilution) and
no detectable contribution of VOCs to Unkamet Brook (accounting
for dilution).” Petition for Review, Exhibit C, Document 6, Comments
on Draft Permit, at 144-145.

After carefully considering the arguments made by the parties,
we are remanding this issue for further consideration by the Region.
The factual basis for the Region’s decision to impose the subject
interim measure is the 1986 study cited by the Region in the Fact
Sheet. But as GE has pointed out, the 1986 study appears to support
GE’s position that contamination of the Unkamet Brook and

11The RCRA Implementation Study recommends that Regions:

Adopt a three-phase approach to corrective action, giving emer-
gency actions and control of releases at all facilities higher pro-
gram priority in the near term than final cleanup actions at most
facilities. The great majority of near-term work would be in the
second phase, which focuses controlling releases at facilities by
using interim measures. The objective of the first and second
phases is to make facilities safe and stable before undertaking
long-term cleanups. The third phase consists of the final cleanup
of the stabilized facility. To the extent practicable, interim meas-
ures should be specified after completion of RFAs and before com-
pletion of RFIs.

The Nation’s Hazardous Waste Management Program at a Crossroads: The RCRA
Implementation Study, EPA/530-SW-90-069, at 81 (Office of Solid Waste & Emergency
Response, July 1990).

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GENERAL ELECTRIC COMPANY 377

Housatonic River from the plume has been negligible. In its response
to the petition for review, the Region does not rebut GE’s arguments
about the 1986 study. GE’s arguments and the Region’s failure to
respond to them raise serious doubts about whether the plume poses
a threat warranting an interim measure. On remand, the Region
should review its factual basis for imposing the interim measure.
If it decides to retain the interim measure, it should supplement
its response to comments to explain why the 1986 study supports
its decision.

Interim Measure 6: This interim measure requires the Region
to propose a plan to remove the contaminated soil around a leaking
underground storage tank (designated SWMU O-M). GE challenges
this interim measure as unnecessary, arguing that the only soil con-
tamination from the tank occurred during two leak tests because
of a loose fitting on top of the tank. GE asserts that, after the
loose fitting was repaired, the tank was found not to leak. GE ques-
tions why the small amount of gasoline-contaminated soil, which
is underground and not accessible, warrants an interim measure.
GE also argues in a footnote that:

[T]his unit does not even constitute a SWMU since
it is an active product tank and there is no evidence
of “routine and systematic releases” from it, as would
be necessary to make the area around it a SWMU
under the permit definition (Permit at 7).

Petition for Review, at 52 n.37.

The Region responds by arguing that the area in question is
a SWMU because it has a “history of documented releases and vola-
tilization to air and soils * * *.” Region’s Response to Petition for
Review, at 57. The Region, however, does not give any particulars
or cite any documents to support this conclusion, nor does it specifi-
cally address GE’s argument that the tank has only leaked twice.
The Fact Sheet issued by the Region states only that “(t]he tank
was determined to be leaking and is releasing gasoline and related
hazardous constituents to the subsurface.” Petition for Review, Ex-
hibit C, Document 1, Fact Sheet, at 15. It is not clear whether
the leaks referred to in the Fact Sheet are the same as the two
leaks acknowledged by GE. The Region’s response to GE’s comments
on this issue is only slightly more helpful, stating that “[t]he tank
has released gasoline containing aromatic hydrocarbons and metals
into the environment.” Petition for Review, Appendix B, at 3-107.
The Region’s response states that its conclusion is based on informa-

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378 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

tion provided by GE. It also confirms GE’s assertion that a loose
fitting led to the leakage. Jd. The Fact Sheet and the Region’s re-
sponse to GE’s comments on this issue are not inconsistent with,
and the response to comments actually tends to support, GE’s argu-
ment that the tank has leaked only two times during a test because
of a loose fitting that has since been repaired. GE’s argument also
draws strength from the Region’s failure to address specifically the
argument in its response to GE’s petition.

If GE’s argument is correct, the interim measure at issue may
not be appropriate. Accordingly, we are remanding the issue to the
Region so that it may reconsider the need for this interim measure.
If it decides to retain the interim measure, it must supplement its
response to comments either to refute GE’s argument that the tank
only leaked twice or to explain why the two leaks should be character-
ized as routine and systematic and why an interim measure is nec-
essary. 12

E. RFI Requirements

In its petition for review, GE makes the general argument that
several of the permit’s requirements for the RFI are premature and
unjustified at this time, since the extent of the required investigations
should depend upon the review of existing data and the results of
the ongoing investigations that GE is conducting under State authori-
ties. GE then gives seven examples of permit provisions that are
meant to illustrate its general argument. GE, however, appears to
believe that its general argument must be addressed separately from
the specific examples it offers in support of its argument. See GE
Reply Brief, at 34. We disagree. The burden is on GE to be specific
in its objections to the permit. GE’s argument cannot be addressed
except through the specific instances identified by GE. It would be
unreasonable to assume that GE’s general argument applies to every
RFI requirement in the permit on the basis of the seven examples
offered by GE. Instead, for each of the examples raised by GE, we
have made a separate determination of the validity of GE’s general
argument. A discussion of each of these examples follows.

Subsurface Soil Sampling Requirements at Facility: GE chal-
lenges the permit’s requirements for subsurface soil sampling, par-
ticularly at several SWMUs that are covered with concrete or clean

12GE reports that, since the petition for review was filed, it has on its own
initiative removed the underground storage tank and the associated contaminated
soil. GE’s Supplemental Brief, at 30-31. On remand, the Region may want to consider
whether, in light of this new information, an interim measure is still justified.

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GENERAL ELECTRIC COMPANY 379

fill. GE argues that data from other investigations, such as surficial
soil sampling and groundwater monitoring, are adequate to character-
ize releases from the SWMU’s. GE asserts that the major migration
pathway for any contaminants in the subsurface soil at these units
is via groundwater and that the groundwater investigations required
by the permit will detect the migration of any such contaminants.

The Region responds by giving a detailed explanation of the
basis for requiring subsurface soil sampling at all of the SWMU’s
that were identified by GE in its petition as examples of its argument.
Region’s Response to Petition for Review, at 63-67. For purposes
of addressing GE’s argument, however, the Region’s argument can
be boiled down to the following proposition: the groundwater inves-
tigations referred to by GE will not detect contaminants that either
have become bound with the soil, have not entered into solution,
or have not mobilized with groundwater.

GE counters that the contaminants described by the Region
would not be migrating and thus do not need to be characterized.
GE contends that other investigations could provide sufficient infor-
mation to carry out the Health and Environmental Assessment and
the Corrective Measures Study. GE believes that the subject SWMUs
are located within an active, access-restricted operating plant under
GE’s control, which is the kind of facility that warrants the use
of conditional remedies. Under the proposed Subpart S corrective
action rule, the use of conditional remedies would be authorized.
See 55 Fed. Reg. 30,879 (July 27, 1990)(proposed 40 CFR § 264.525(f)).
The preamble to Subpart S describes conditional remedies as follows:

Generally, a conditional remedy would allow existing
contamination (sometimes at existing levels) to re-
main within the facility boundary, provided that cer-
tain conditions are met. These conditions would in-
clude achieving media cleanup standards for any re-
leases that have migrated beyond the facility bound-
ary as soon as practicable, implementing source con-
trol measures that will ensure that continued re-
leases are effectively controlled, controlling the fur-
ther migration of on-site contamination, and provid-
ing financial assurance for the ultimate completion
of cleanup.

Id. at 30,833. GE cites the above-quoted preamble in support of

its argument that, because conditional remedies would be appropriate
for its facility, there is no need to require RFI investigations for

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380 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

releases that are not migrating. The Region responds that releases
must be characterized before conditional remedies may be imposed.

Essentially, GE is arguing that it is not necessary to characterize
subsurface soil contamination that is not currently migrating. We
disagree. Even if the Subpart S proposal were now in effect, it would
still be necessary to conduct an investigation of the site to determine
whether a conditional remedy is appropriate. See 55 Fed. Reg. 30,874
(July 27, 1990)(proposed §264.511(a)). Even if a release is not cur-
rently migrating, it may still be useful to the Region to know the
extent and concentration of the release. Such information may enable
the Region to predict whether migration is likely in the future. Ac-
cordingly, we do not believe that it is unreasonable for the Region
to require GE to provide such information, and we decline to direct
the Region to delete the subsurface soil sampling requirements.

Constituents To Be Analyzed in Soil Samples: The permit re-
quires that all soil samples must be analyzed during the first round
of samples taken at each location for all constituents listed in Appen-
dix IX of 40 CFR Part 264 (Groundwater Monitoring List). See Peti-
tion for Review, Exhibit A, Final Permit, at 18, 21, 24. GE believes
this requirement is overbroad and that, for a given area, Appendix
IX analysis of soil samples from a number of selected soil borings
in the area would be sufficient to identify the constituents likely
to be present in the area.15 GE states that, after these results (as
well as prior data) are reviewed, a list of “target” constituents should
be developed for that area, subject to EPA review. Samples from
other borings in the area would then be analyzed for these “target”
constituents, even during the initial sampling of the borings.

Since the filing of the petition for review, the Region has agreed
to change the requirements relating to the analysis of soil samples.
Region’s Supplementary Brief, Attachment I, at 4. The Region now
agrees that, for a given SWMU, GE may select a representative
soil boring for initial full scan of Appendix IX constituents and based
on those results, develop a list of target constituents to be analyzed
for in the remaining borings in that area. If the initial sampling
and Appendix [IX data are adequate to characterize the constituents
in the soil at or around a given SWMU, the subsequent soil borings
for that SWMU would not have to be analyzed for all Appendix
IX constituents. GE’s Supplemental Brief, Exhibit B, at 4.

13In its Petition for Review, GE does not define what it means by an “area.”

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GENERAL ELECTRIC COMPANY 381

In a footnote to its Supplementary Brief, GE argues that the
Region’s concessions do not resolve the issue, since GE would still
be required to do a full Appendix IX analysis of at least one soil
sample at each SWMU. GE Supplemental Brief, at 33 n.22. While
GE does not explain why a full Appendix IX analysis of at least
one soil sample at each SWMU would be unreasonable, the implica-
tion of GE’s footnote is that a full Appendix IX analysis of one
soil sample is sufficient to characterize an “area” much larger than
a single SWMU. If that is GE’s contention, we disagree. It does
not seem unreasonable for the Region to treat each SWMU as one
“area” for purposes of the target approach suggested by GE, because
each SWMU is a separate source of contamination and a list of
target constituents applicable to one SWMU will not necessarily be
representative of another SWMU. Accordingly, we decline to direct
the Region to alter the approach agreed to by the Region and outlined
above.

Requirements to Sample Other Media: The permit originally re-
quired GE to perform ambient air monitoring at SWMU G-—5 (Build-
ing 78 Landfill) for particulate matter and volatile constituents. After
the petition was filed, GE capped the Building 78 Landfill, and the
Region agreed to withdraw the requirement for particulate monitor-
ing. The Region, however, did not agree to withdraw the requirement
for volatiles monitoring. In its petition for review, GE argues that
monitoring for volatiles should be required only if the soil borings
and subsurface gas investigation at the landfill show potential volatile
organic emissions. The Region responds that the landfill showed evi-
dence of hydrocarbons disposal, and that hydrocarbon odors were
detected during the Visual Site Inspection phase of the RFA. The
Region states that the landfill, even if covered with a cap, is not
equipped with a venting system that would eliminate migration to
the air.

In its supplemental brief, GE states that its investigations in
the relevant area, which GE reported to the Region in a Current
Assessment Summary (CAS) Report submitted in September 1991,
do not show the presence of significant volatiles emissions. GE con-
tends that, before imposing the RFI requirement at issue, the Region
should review GE’s report, and if it concurs that the data do not
show a significant volatiles problem in the area, it should delete
the requirement for volatiles monitoring. In its supplemental brief,
the Region does not address this issue.

We are not persuaded that the volatiles monitoring requirement
in the permit is unreasonable. GE has not met its burden of showing

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382 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

that the Region’s technical judgment on this issue is clearly erro-
neous. The 1991 CAS report relied on by GE may indeed support
GE’s position, but it was submitted to the Region after the final
permit was issued and is not part of the record upon which the
Regional Administrator based her decision. Accordingly, it does not
affect the validity of that decision.14

Underground Pipes, Tunnels, and Tanks: The permit requires
GE to include in the RFI detailed information about underground
pipes, tunnels, storage tanks, and other “preferential pathways” at
the facility, including maps showing the location of all such pathways,
a description of the condition of the pathways, a description of the
materials stored or conveyed in the pathways, a proposal for evaluat-
ing the effect of the pathways on groundwater and contaminant move-
ment, and a proposed approach for assessing the contribution of re-
leases from such pathways to all media. Petition for Review, Exhibit
A, Final Permit, at 21-22. GE argues that these requirements are
far too broad. For one thing, GE argues, the provision would include
underground pipes that never carried waste. GE represents that,
because the facility has been used for many decades for industrial
purposes, it does not even know the location of all underground
pipes, tunnels and tanks, much less the other information required
by the permit. GE further contends that any materials entering into
pipes and tunnels on GE’s property will be conveyed to a permitted
outfall and will be evaluated and monitored under GE’s NPDES per-
mit. GE argues, therefore, that prior to specifying the requirements
for all underground pipes, tunnels, and tanks, the data from GE’s
groundwater monitoring programs, its NPDES program, and its soil
excavation program should be reviewed. If such data identify specific
concerns relating to particular conveyances or tanks, the Region can
then require detailed and focused investigations for such units. Peti-
tion for Review, at 64.

The Region responds that some of the underground pipes, tun-
nels, tanks, and conveyances at the facility have existed since the
late 1880’s and that such conveyances carried process wastes, waste
oil, stormwater, and sanitary wastes. The Region argues that an
assessment of these conveyances, some of which drain to the
Housatonic River, is essential to any site characterization and to
any corrective measures assessment and implementation rec-

14Under the Final Permit, the CAS Report must be included in GE’s RFI proposal
and will be considered by the Region when the RFI proposal is submitted. At that
time, if the information in the CAS Report shows that the RFI requirement is unneces-
sary, the Region should delete the requirement from the permit.

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GENERAL ELECTRIC COMPANY 383

ommendation. The Region points out that GE has already done pre-
liminary investigative work through its NPDES requirements and
through its own privately commissioned studies and that such infor-
mation can be submitted as part of the Current Assessment Summary
to narrow the scope of current proposals and to identify existing
data gaps.

The Region notes that the RFI process is a phased one and
that as further information develops about the extent of these convey-
ances, it can be developed and submitted. The Region also states
that if conveyances are impossible to locate or characterize, GE is
free to present the information supporting that conclusion. The Re-
gion can then modify the requirements to conform to the practical
limitations presented. In its reply brief, GE responds that such “quali-
fications are not contained in the permit and seem more akin to
the kind of approach that GE suggested.” GE Reply Brief, at 41.

We are not persuaded that the Region can learn everything it
needs to learn through its groundwater monitoring programs, its
NPDES program, and its soil excavation program. It is easily conceiv-
able that such programs would not alert the Region to all of the
potential problems posed by the myriad pipes, tunnels, tanks, and
conveyances underground at the facility. GH’s position that every-
thing the Region needs to know about underground pathways at
the facility can be gained through these other programs is undercut
by GE’s admission that it does not know where all of the pathways
are or what condition they are in. Accordingly, we conclude that
the Region need not alter the permit requirements at issue. We
note, however, that we are upholding the permit requirements as
they have been interpreted by the Region. The Region has interpreted
the permit as providing that: (1) the RFI process relating to under-
ground pathways will be phased so that later stages can reflect infor-
mation gained during earlier stages; and (2) if underground pathways
cannot be located, GE can present evidence to that effect, and the
Region will modify the RFI requirements accordingly. As GE noted
in its reply brief, the Region’s interpretation is “akin to the kind
of approach that GE suggested.” Id. We adopt this interpretation
as an authoritative reading of the permit that is binding on the

Agency.
F. Deadlines

The permit imposes specific deadlines for all of the submissions
that GE is required to make under the permit. GE argues that

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384 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

some of these deadlines are arbitrary and unjustified.15 GE asserts
that the permit imposes deadlines for activities that are as yet unde-
termined.

The Region responds that the schedules in GE’s permit reflect
Regional and national experience in formulating corrective action
timetables. The Region states that GE is free at any time to request
extensions from the deadlines. The Region also notes that the require-
ment for submission of the Project Management Plan will allow GE
to propose extended time-frames for the RFI submittals. 16

We conclude that the Region need not change the timetables
imposed in the permit. Where corrective action cannot be completed
prior to issuance of the permit, “EPA is statutorily compelled to
devise and impose ‘schedules of compliance’ for corrective action”
such as the schedules contained in GE’s permit. W.R. Grace & Co.
v. E.P.A., 959 F.2d 360 (1st Cir. 1992) (citing RCRA §3004(u), 42
U.S.C. §6924(u)).17 GE has not persuaded us that the challenged
deadlines are unreasonable on their face. Absent such a showing,
we will defer to the Region’s extensive experience in setting such
deadlines. We also note that the deadlines are subject to modification
if future circumstances so warrant. Accordingly, this issue is dis-
missed. See W.R. Grace & Company, RCRA Appeal No. 89-28, at
4 n.6 (March 25, 1992) (rejecting challenge to deadlines in permit).18

15In particular, GE objects to the 30-day period prescribed in the permit for
simultaneously preparing proposals for 13 interim measures. GE believes that it will
take at least 60 days to prepare such proposals. We note, however, that of the 13
interim measures for which proposals are required in the permit, GE committed to
proceed with submitting proposals for five measures that were not challenged on
appeal. We also note that of the eight measures challenged on appeal, the Region
has agreed to withdraw five of them, GE Supplemental Brief, at 28, and of the
remaining three measures on appeal, we are remanding two for reconsideration. Thus,
whatever force GE’s original argument had, that force has been significantly dimin-
ished by subsequent events.

16The Project Management Plan is a document to be submitted by GE as part
of its RFI proposal, establishing a proposed schedule within which specified elements
of the work required under the permit must be completed. The Region represents
that timetables will continually be developed to reflect ongoing work. Petition for
Review, Appendix A, Final Permit, at 80.

17RCRA Section 3004(u) provides that “[p]ermits issued under section 6925 of
this title shall contain schedules of compliance for such corrective action (where such
corrective action cannot be completed prior to issuance of the permit) * * *.” 42
U.S.C. §6924.

18We note that the Region has offered to modify the permit time schedules to
conform with many of the deadlines in the Massachusetts’s Consent Orders. Region’s
Supplemental Brief, at 26. In light of this willingness to accommodate GE’s concerns
about deadlines, we are even less inclined to second-guess the Region’s judgment
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GENERAL ELECTRIC COMPANY 385
G. General Conditions

Section 270.30 of the rules contains a list of permit conditions
that must be included in all RCRA permits, either expressly or by
reference. 40 CFR § 270.30. The Region included these “boilerplate”
provisions in slightly modified form among the General Conditions
in GE’s corrective action permit. GE argues that the requirements
of Section 270.30 should not be applied inflexibly in the corrective
action context, because such requirements were written to apply to
permits for hazardous waste treatment, storage and disposal facili-
ties, which GE argues are much more limited in extent than an
entire plant site and off-site areas that may be covered by a corrective
action permit. GE believes that, where a corrective action permit
is issued for massive sites such as the GE facility and associated
off-site areas, the Region issuing the permit should be allowed and
directed to make appropriate modifications to Section 270.30 condi-
tions to make them more suitable to the site. GE notes that the
requirements of Section 270.30 were promulgated in 1980, before
the corrective action requirements were promulgated and that they
therefore were not meant to apply in the corrective action context.
As an example of a boilerplate condition that should be modified,
GE cites the General Condition 1.17 of the permit. That condition
requires GE to notify the Region of “any planned physical alterations
or additions to the Facility covered by this Permit.” GE believes
this condition should be amended to cover only alterations or addi-
tions that could affect GE’s obligations or activities under the correc-
tive action permit and should exclude emergencies.

The Region responds that the requirements of Section 270.30
are applicable to all RCRA permits including HSWA permits issued
by the Agency. The Region points out that Section 270.30 has been
amended twice since 1983 (once at 50 Fed. Reg. 28,752 (July 15,
1985) and again at 53 Fed. Reg. 37,935 (September 28, 1988)) and
that in neither instance was the section amended to exclude HSWA
permits from its scope. The Region also states that its position on
the applicability of the general permit conditions was affirmed on
in this area. See In re Sandoz Pharmaceuticals Corp., RCRA Appeal No. 91-14, at
12 (EAB, July 9, 1992) (“The Region’s obvious willingness to accommodate Sandoz’
concerns about time constraints, as evidenced by its revisions to the draft permit,
convinces us that Sandoz’ concerns are adequately addressed by the permit provision
allowing for modification of the compliance schedule when unforeseen circumstances
require a change.”).

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386 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
December 19, 1990 in In re BFGoodrich Company, RCRA Appeal
No. 89-29 (December 21, 1990).18
In its supplemental brief, GE represents that the Region has
now agreed to amend the introductory sentence to provide that GE
shall comply with the General Conditions “to the extent such condi-
tions relate to permittee’s corrective action activities under the per-
mit,” and to amend General Condition 16, which prescribes who must
sign GE’s submissions to the Region. GE Reply Brief, Annex D, at
1 (proposed changes to make general permit conditions appropriate
for a corrective-action permit).
When the boilerplate requirements of § 270.30 were promulgated,
a RCRA permit was issued by a single agency, either by EPA or
an authorized State. Since the passage of the Hazardous and Solid
Waste Amendments (including the corrective action requirements),
however, it is frequently the case that one part of the permit, contain-
ing pre-HSWA requirements, is issued by an authorized State, while
another part of the permit, containing HSWA requirements, is issued
by the Agency. The reason is that States that were authorized to
issue RCRA permits before 1984 did not automatically become au-
thorized to impose HSWA requirements in 1984, and until such
States do become authorized, the Agency is responsible for issuing
the portions of permits that impose the HSWA requirements in those
States. 42 U.S.C.A. 6926(g); 40 CFR §§271.3(b)(8) & 271.134). In
these circumstances, the State and Federal portions of the permit
together constitute the RCRA permit. See In re Marathon Petroleum
Company, RCRA Appeal No. 88-24, at 1 n.1 (November 16, 1990)
18In BFGoodrich, the permittee challenged the inclusion in a corrective action
permit of a condition identical to General Condition 1.17 quoted above. BFGoodrich
argued that the condition was overbroad and bore no relation to the protection of
human health and the environment. The Administrator declined to grant review on
the issue, noting that the scope of the permit condition was identical to the boilerplate
condition in Section 270.30(1)(1). The Administrator observed that:
Again, BFGoodrich has presented no good reason to depart from
the Agency’s policy of declining to consider challenges in individual
permit proceedings to the requirements and policies embodied in
its rules.
Id. at 9. The Administrator noted that the Region was not arguing that Section
270.30 provided direct legal authority for the contested permit condition, but was
instead asserting that the condition was based on Section 264.101, the corrective
action rule. The Administrator concluded, however, that:
[G]iven the similarity between the contested condition and
§270.30(1(1), the Agency will not entertain a challenge to the
scope of this condition in this proceeding.
Id. at 9, n.9.
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GENERAL ELECTRIC COMPANY 387

(“Since Illinois has not yet received authorization to administer the
HSWA portion of the permit, EPA establishes the requirements man-
dated by HSWA. Only after both the State and federal portions of
the permit have been issued does the permittee have a full RCRA
permit.”).2° The question before us then is whether Section 270.30
requires or even authorizes the inclusion of the Section 270.30
boilerplate requirements in the HSWA portion of the permit when
a State has issued the non-HSWA portion of a permit containing
requirements at least as stringent.

We are of the view that Section 270.30 neither requires nor
authorizes the inclusion of the boilerplate requirements in the split
permit situation described above. The Region is correct in arguing
that the boilerplate requirements must be included in every RCRA
permit, but in a split permit composed of a federal HSWA portion
and a State non-HSWA portion, it is the State’s responsibility to
implement the boilerplate requirements. Under the rules, a State
issuing the non-HSWA portion of the permit is required to include
conditions at least as stringent as the requirements of Section 270.30.
40 CFR §271.14(i). When the State issues the non-HSWA portion
of the permit, the Agency is only responsible for implementing the
HSWA amendments. In this regard, we note that Section 270.30
does not appear on the comprehensive list of regulations implement-
ing the HSWA amendments at 40 CFR §271.1(j). We also note that
the Model corrective action permit issued by the Director of the
Permits and State Programs Division of the Office of Solid Waste
and Emergency Response does not contain such requirements.?!

If a Region wants to include requirements similar to the ones
in Section 270.30, it must find authority for such requirements in
the corrective action rule at 40 CFR § 264.101. If such conditions,
as they appear in Section 270.30, need to be tailored to reflect their
intended application to corrective action activities, the Region must
do so. The general conditions at issue here were adopted wholesale
from the Section 270.30 boilerplate requirements without such tailor-
ing. The Region itself admits that for the most part the challenged
general conditions are essentially identical to those found at Section
270.30. Region’s Response to Petition for Review, at 76. Moreover,

20While the State and Federal portions constitute the complete RCRA permit,
a defect in the State-issued portion does not affect the validity of the Federal portion.
In re Adcom Wire, d/b/a Adcom Wire Company, RCRA Appeal No. 92-2 (September
3, 1992).

21The proposed Subpart S rule does not address the issue of whether, in a split
permit situation, the Agency should include the Section 270.30 boilerplate require-
ments.

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388 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the Region has implicitly conceded that such conditions, as written,
may need tailoring to fit within the corrective action context, by
agreeing to amend the introductory sentence of the General Condi-
tions to provide that GE shall comply with the General Conditions
“to the extent such conditions relate to permittee’s corrective action
activities under the permit.” GE Reply Brief, Annex D, at 1.

That introductory language, however, does not totally cure the
problem, because the Region improperly relied on Section 270.30 as
its justification for including the disputed provisions. Thus, we cannot
be certain that the Region ever made a determination that such
provisions are necessary to implement the corrective action rule at
Section 264.101, which is the justification for the other provisions
in the permit.2? Similarly, because the Region incorrectly believed
it was compelled by Section 270.30 to include the disputed provisions,
the Region refused to consider some of GE’s suggestions for tailoring
the provisions. As a result, despite the introductory language, we
cannot be certain that the Region ever made a determination that
the scope of each provision, as written, is appropriate in the corrective
action context. The Region should at least consider GE’s suggestions
and articulate a legally supportable rationale for its conclusions.

Accordingly, we are remanding this issue to the Region so that
the Region may consider whether, in light of this opinion, any of
the General Conditions drawn from Section 270.30 should remain
in the permit. If the Region believes that such conditions should
remain in the permit, it must find authority for such requirements
in the corrective action rule at 40 CFR § 264.101. The Region should
also consider whether any such conditions need to be further tailored
to reflect their intended application to corrective action activities.73

22This does not mean that a Region has to articulate a separate justification
as to why these provisions are necessary to implement the corrective action rule
at Section 264.101; it only means that, in this case, in view of our ruling that Section
270.30 does not provide a basis for the provisions, the Region should consider whether
such provisions still belong in the corrective action portion of the permit and assure
any finding that the permit is “necessary to protect human health and the environ-
ment” extends to these provisions.

23As discussed in note 19 supra, in BFGoodrich, the Administrator refused to
consider the permittee’s argument that the boilerplate provision included in the HSWA
portion of BFGoodrich’s permit needed to be tailored to make it fit within the corrective
action context. The Administrator reasoned that, even though the Region had invoked
Section 264.101 as legal authority for the provision, the scope of the provision could
not be challenged on appeal because the provision was taken verbatim from Section
270.30. The Administrator, however, did not fully consider whether a provision that
is meant to implement the corrective action rule at Section 264.101 must be tailored
to make it appropriate in a corrective action context. Having fully considered that

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GENERAL ELECTRIC COMPANY 389

Ill. CONCLUSION

For all the foregoing reasons, the following issues are hereby
remanded to the Region for further consideration consistent with
this opinion: (1) whether Interim Measure 4 is necessary; (2) whether
Interim Measure 6 is necessary; and (3) whether the conditions in
the permit that are drawn from Section 270.30 are authorized by
the corrective action rule at 40 CFR §264.101 and whether they
are adequately tailored to reflect their intended application to correc-
tive action activities. In addition, on remand, the Region should im-
plement the revisions agreed to by GE and the Region. Under 40
CFR § 124.19(f)(1)(iii), GE will not need to appeal the results of the
remand in order to exhaust its administrative remedies for purposes
of judicial review. The Board is reserving judgment on the issue
relating to the absence of a review mechanism for Regional revisions
of interim submissions. The other issues raised in GE’s petition for
review are hereby dismissed.

So ordered.

issue, the Board is of the view that such a provision must be tailored if necessary
and that, accordingly, the scope of such a provision may be challenged on appeal.
To the extent the BFGoodrich decision is inconsistent with this view, it is overruled.

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