General Electric Company

Plain-English summary

General Electric challenged EPA Region I's authority to revise reports and proposals that defined corrective-action work at its Pittsfield, Massachusetts facility. The company argued that revisions to these interim submissions were formal permit modifications and that it was entitled to notice and a hearing before the revisions became enforceable. The Environmental Appeals Board held that the revisions were not formal permit modifications under 40 C.F.R. § 270.41, but that due process required an opportunity for a hearing before the Region approved a revised interim submission. The Board remanded the case so EPA could add a dispute-resolution procedure to the permit, including written arguments and evidence to the Regional Administrator or a delegated final decisionmaker.

Decision snapshot

• Cited authorities: RCRA §§ 3004(u), 3005(c), and 3006(b); 40 C.F.R. §§ 124, 124.5, 264.101, 270.30, 270.34, 270.41, and 270.42.
• Outcome: The case was remanded for a permit dispute-resolution procedure and a hearing opportunity before EPA approves revised interim submissions.
• Key point: EPA may revise corrective-action interim submissions without using formal permit-modification procedures, but it must provide notice and a meaningful hearing opportunity before the revisions become enforceable.

Full text (EPA EAB public release)

+GENERAL ELECTRIC COMPANY 615

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

REMAND ORDER

Decided April 13, 1993

Syllabus

The Environmental Appeals Board granted review of a petition filed by General
Electric Company challenging the corrective action portion of a RCRA permit issued
by EPA Region I. All of the issues in the case except one were disposed of in an
earlier order. The one issue remaining for disposition relates to the Region’s authority
under the permit to revise reports and proposals submitted by GE in accordance
with the permit. Under the permit, GE is required to determine the extent of contami-
nation at the facility, the best methods to clean up such contamination, and the
best way to carry out certain interim measures for addressing imminent threats to
human health and the environment from the contamination. To accomplish these
goals, the permit requires GE to submit proposals for completing a RCRA Facility
Investigation (RFI, a Corrective Measures Study (CMS), and a number of interim
measures to deal with imminent threats. When GE has completed the RFI, the CMS,
and the interim measures, the permit also requires GE to prepare reports summarizing
the work that has been done and if appropriate recommending that more work be
done. The proposals and reports to be submitted by GE (“interim submissions”) sub-
stantially define GE’s obligations under the original permit. Such interim submissions
are subject to the Region’s approval, and the Region is authorized under the permit
to revise them or to require GE to revise them. By revising GE’s interim measures,
the Region can require GE to do more work than GE thought was necessary to
fulfill the requirements of the original permit. Once the Region has approved an
interim submission, any work requirements contained therein become enforceable obli-
gations under the permit.

GE argues that a revision by the Region of one of GE’s interim submissions
will constitute a modification of the permit and is therefore subject to the formal
modification procedures at 40 CFR §270.41 and 40 CFR Part 124. GE also argues
that, even if a revision of an interim submission does not constitute a permit modifica-
tion for purposes of Section 270.41, such a revision does constitute a deprivation
of property within the meaning of the Constitutional due process clause. GE argues,
therefore, that it must be given notice and an opportunity for a hearing before the
deprivation may be accomplished.

Held: A revision by the Region of an interim submission will not constitute
a modification of the permit subject to the formal modification procedures at 40 CFR
§270.41 and 40 CFR Part 124. However, before the Region approves the revised
interim submission, it must give GE the opportunity for a hearing, and the procedures

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616 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

for such a hearing should be set out in GE’s permit. The hearing procedures should
be patterned after the dispute resolution provision described by the Region at oral
argument but modified as necessary to conform with this decision. Thus, the dispute
resolution provision to be inserted into GE’s permit should provide that, if GE and
the Regional permitting staff cannot resolve the dispute, GE will have the right
to submit written arguments and evidence to the person in the Region who has
authority to make the final permit decision for the Region, either the Regional Admin-
istrator or the person to whom the Regional Administrator has delegated authority
to make such decisions. The dispute resolution provision, however, need not grant
GE the right to make an oral presentation to the final decisionmaker.

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”), 42
U.S.C. §§6901-6992k. The permit, which was issued on February
8, 1991, is for GE’s manufacturing facility in Pittsfield, Massachu-
setts.) On November 6, 1992, the Board issued a Remand Order
remanding certain issues raised by GE, dismissing other issues, and
reserving judgment on one issue. The issue on which the Board
reserved judgment relates to the absence in the permit of a specified
procedure for handling disputes between GE and the Region over
the Region’s revisions of proposals and reports (“interim submis-
sions”) submitted by GE in accordance with the permit. For the
reasons set forth below, the Board is remanding this issue to the
Regional Administrator with instructions to change the language of
the subject permit to add a procedure for resolving disputes over
revisions of interim submissions.

I. BACKGROUND

The 1984 HSWA amendments added Section 3004(u) to RCRA,
providing that any person seeking a permit under Section 3005(c)
of RCRA for a treatment, storage, or disposal facility after November
8, 1984, must perform any “corrective action” necessary to clean up
releases of hazardous wastes or hazardous constituents from any
solid waste management unit (SWMU) at the facility. This require-
ment is implemented in the regulations at 40 CFR § 264.101.

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).

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GENERAL ELECTRIC COMPANY 617

A permittee’s corrective action work at a facility typically takes
place in three stages. In the first stage, the permittee performs a
RCRA Facility Investigation (RFI), the purpose of which is to deter-
mine the extent and nature of any releases from SWMUs at the
facility. In the second stage, the permittee performs a Corrective
Measures Study (CMS), the purpose of which is to investigate poten-
tial corrective measures for cleaning up those releases. On the basis
of that investigation, corrective measures are selected by the Region
and incorporated into the permit through the formal modification
procedures at 40 CFR §270.41 and 40 C.F.R. Part 124. The third
and final stage of corrective action is implementation of the corrective
measures selected by the Region. In addition, when circumstances
warrant, the permittee is required to take corrective measures before
the RFI and CMS are completed to address any imminent hazards
to human health or the environment. Such corrective measures are
called interim measures.

When the corrective action necessary to address releases at the
site cannot be completed prior to the issuance of a permit, the permit
contains a schedule of compliance, which dictates the corrective action
tasks that need to be done and the time periods in which those
tasks must be completed.2 Frequently, at the time the permit is
issued, the extent and nature of the contamination at the facility
and the most effective ways of cleaning up the contamination are
not fully known. As a result, when the Agency issues the permit,
it does not have sufficient information to include a detailed schedule
of compliance for the RFI or CMS to be performed at the site. For
this reason, the obligations in the schedule of compliance relating
to the RFI and CMS are written in general terms, with the permit
providing that the details of those obligations will be filled in later
as more information about the site becomes available. Once such
information becomes available, the permittee is required to propose
plans for carrying out the various steps of the RFI and CMS. The
permittee must also submit reports on the work it has completed.
The plans and reports submitted by the permittee must be approved
by the Regional Administrator, who is authorized to revise or require
the permittee to revise them. Once the Regional Administrator ap-
proves these interim submissions, they become enforceable obligations
of the permit. Thus, the permittee’s interim submissions are used
to flesh out the more general obligations in the original permit.

2See RCRA Section 3004(u), 42 U.S.C. 6924 (“Permits 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) * * *.”)

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618 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The permit issued to GE follows this typical pattern. It sets
up an extended schedule of compliance according to which GE is
required to submit proposals and reports to the Region. First, GE’s
permit requires submission of a detailed proposal for a RCRA Facility
Investigation to investigate releases from 106 identified SWMUs and
of the sediments, surface water, and 100-year floodplain of the
Housatonic River. Final Permit, Exhibit A to GE’s Petition for Re-
view, at 14-81. Under the permit, GE’s RFI proposal is subject to
review and approval by the Region, and the Region is authorized
to revise or require revision of the proposal. Final Permit, at 86-

87. Thus, by revising the proposal, the Region could, for example,
    require GE to dig more groundwater detection wells to determine
    the extent of a particular release than GE thought necessary. After
    GE has performed the investigation requirements in the approved
    RFI plan, it must submit an RFI report. The report is also subject
    to review and approval by the Region, and the Region is authorized
    to revise or require revision of the report. If the report concludes
    that further investigation is necessary and if the Region approves
    the report, the permittee must implement such further investigation
    according to the schedules contained in the report. Final Permit,
    at 97.

As part of the RFI, GE is required by the permit to submit
a proposal for a Health and Environmental Assessment (HEA), identi-
fying the human populations and/or environmental systems that may
be exposed to hazardous waste and/or hazardous constituents re-
leased at the facility. Final Permit, at 73. Upon completion of the
HEA, GE is required to submit an HEA Report, which is separate
from the RFI report. The HEA Proposal and the HEA Report are
both subject to review and approval by the Region, and the Region
is authorized to revise or require revision of either of them. Final
Permit, at 89.

At the time GE submits the RFI Report, GE is also required
to submit a Media Protection Standards Proposal, containing at a
minimum, proposed media protection standards (clean-up standards)
for all releases identified during the RFI. The Region will then either
approve or disapprove the proposal. If the Region disapproves the
proposal, it is authorized to revise or require revision of the media
protection standards proposed by GE. Final Permit, at 103-04. On
the basis of the media protection standards approved by the Region,
GE will then submit a Corrective Measures Study Proposal. The
purpose of the Corrective Measures Study Proposal is to identify,
and justify the selection of, the corrective measures it will consider

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GENERAL ELECTRIC COMPANY 619

as potential methods of achieving the approved Media Protection
Standards. Final Permit, 104-05. The Corrective Measures Study
Proposal is subject to review and approval by the Region, and the
Region is authorized to revise or require revision of the proposal.
Thus, by revising the Corrective Measures Study Proposal, the Region
could require GE to investigate the possibility of using a corrective
measure not identified in GE’s proposal. Once the Corrective Meas-
ures Study has been approved by the Region and performed by GE,
the permit requires GE to submit a Corrective Measures Study Re-
port. Among other things, the report must include an assessment
of which corrective measure alternatives could be pursued to meet
the Media Protection Standards. The Report is subject to review
and approval by the Region, and the Region is authorized to revise
or require revision of the report. On the basis of the report and
other factors, the Region will select the corrective measures necessary
to remedy the releases at the facility.

GE’s permit requires it to carry out certain interim measures.
Final Permit, at 108. It also requires GE to submit a proposal detail-
ing the methodology and procedures GE will follow to carry out these
interim measures. Jd.3 This proposal is also subject to the review
and approval of the Region, and the Region is authorized to revise
or require revision of the proposal. For example, the Region could
require GE to use a different methodology to carry out a particular
interim measure. Final Permit, at 112. Once the Region approves
the proposal, GE will be required to carry out the interim measures
using the methodologies and procedures specified in the approved
plan. After that, GE will be required to submit an Interim Measures
Report, which must summarize all work performed to carry out the
interim measures and must include an evaluation of the effectiveness
of the interim measures performed and the need for further work.
If the Interim Measures Report concludes that further work is nec-
essary, the report must include a proposed scope of further work,
appropriate protocols, and schedules. The Interim Measures Report
is subject to review and approval by the Region, and the Region
is authorized to revise or require revision of the report. Thus, by
revising the report, the Region might require GE to perform supple-
mental work to correct a particular problem that was not solved
by the original interim measure. Final Permit, at 112-13.4

3 Although the Region has agreed to delete some of the interim measures specified
in the permit and the Board has remanded others to the Region for reconsideration,
several of the interim measures originally specified in the permit remain.

4This case is to be distinguished from General Motors Corporation, Delco Moraine

Division (North & South Plants), RCRA Appeal Nos. 90-24, 90-25 (EAB, November
Continued

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620 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

GE argues that revisions of its interim submissions constitute
modifications of the permit and are therefore subject to the formal
modification procedures at 40 CFR §270.41 and 40 CFR Part 124.
A permit modification under those procedures can be appealed to
the Environmental Appeals Board under 40 CFR § 124.19(a) and then
to the U.S. Court of Appeals under RCRA Section 7006(b), 42 U.S.C.
§6976. GE also argues that, even if a revision of an interim submis-
sion does not constitute a permit modification for purposes of Section
270.41, such a revision does constitute a deprivation of property with-
in the meaning of the Constitutional due process clause. GE argues,
therefore, that it must be given notice and an opportunity for a
hearing before the deprivation may be accomplished. GE’s challenge
does not extend to the Region’s ultimate selection of the corrective
remedies to be performed at the site, since those corrective remedies
become part of the permit through the formal permit modification
procedures at 40 CFR § 270.41 and 40 CFR Part 124.

Permit conditions like the ones challenged here were considered
by the Agency in In re W.R. Grace & Company, RCRA Appeal No.
89-28 (Adm’r, March 25, 1991). In that case, the permittee argued
that revisions of interim submissions by the Regional Administrator
constituted permit modifications and must therefore conform to the
formal modification procedures at 40 CFR §§ 270.41 & 124.5. Under
those procedures, the modified portion of the permit is treated like
a draft permit and is subject to the procedures in 40 CFR Part
124 for issuing draft permits. 40 CFR §124.5(c). If the Regional
Administrator proceeds with a modification over the objections of
the permittee, the permittee may appeal the result to the
Environmendal Appeals Board under 40 CFR § 124.19(a), and it may
appeal the Board’s decision to the Court of Appeals under RCRA
§7006(b), 42 U.S.C. §6976(b). The Administrator, however, rejected
the permittee’s argument that the Agency is constrained to follow

6, 1992). The corrective action permit at issue in that case contained a provision
that authorized the Regional Administrator to revise the permit’s schedule of compli-
ance to require the permittee to perform interim measures whenever the Regional
Administrator determined that a release posed a threat to human health and the
environment. The permit provided that such revisions to the schedule of compliance
were to be accomplished through either the formal modification procedures at 40
CFR §270.41 or an abbreviated modification procedure described in the permit. The
Board directed the Region to remove the abbreviated procedure from the permit be-
cause it had not been adopted by regulation and to provide that Agency-initiated
modifications to incorporate interim measures must proceed according to the existing
modification procedures in 40 CFR § 270.41. Id. at 17. The holding in General Motors,
however, has no bearing on this case because here, the interim measures were specified
in the original schedule of compliance, while in General Motors the schedule of compli-
ance did not specify any interim measures.

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GENERAL ELECTRIC COMPANY 621

these formal permit modification rules in revising an interim submis-
sion. He concluded that the “Regional revision of interim submissions
does not conflict with the Agency’s permit modification rules because
such submissions are not part of the permit at the time of the Re-
gion’s review and revision.” Grace, RCRA Appeal No. 89-28, at 3.

The permittee in Grace also argued that by not subjecting Re-
gional revisions of interim submissions to formal modification proce-
dures, the permit deprived the permittee of its property without due
process of law. The Administrator also rejected this argument, observ-
ing that:

Although Grace invokes the constitutional due proc-
ess clause, the permit on its face provides an oppor-
tunity for adequate process because Grace will be
able to make its views known through its initial sub-
missions as well as any subsequent communications
with the Region, and it should receive a reasoned
response to those views from the Region.

Id. at 3 (footnotes omitted).5

On November 3, 1992, the Board granted review and scheduled
oral argument in a case involving the same issues decided in the
Grace case. In re Allied-Signal, Inc. (Metropolis, Illinois), RCRA Ap-
peal No. 92-1 (EAB, November 3, 1992)(Order Granting Review and
Scheduling Oral Argument).6 In the order granting review, the Board
noted that “[a]lthough Grace is presumptively conclusive of the permit
modification and due process issues raised here by Allied, the Envi-
ronmental Appeals Board is nevertheless concerned that Grace may
require further explication and, also, that Allied’s petition may raise
related but distinguishable issues from those that were decided by
Grace.” Id. at 3.

5The Administrator’s Grace decision was appealed to the U.S. Court of Appeals
for the First Circuit. W.R. Grace & Co.—Conn. v. U.S. E.P.A., 959 F.2d 360 (1st
Cir. 1992). On appeal, the Court declined to hear the case, ruling that it was not
ripe for disposition. The Court concluded that an appeal of the contested permit
provisions would not be ripe until an actual dispute arose over a Regional revision
of a particular interim submission. Jd. at 365-67.

©The questions designated for oral argument related to the Region’s legal or
policy basis for treating revisions of interim submissions differently than the selection
of the corrective measures with respect to the Section 270.41 modification procedures,
the effect of the Grace decision on a permittee’s statutory right to judicial review
of permit modifications, and the adequacy for due process purposes of a proposed
hearing procedure for challenges to Regional revisions to interim submissions.

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622 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

On November 6, 1992, the Environmental Appeals Board issued
an order disposing of all of the issues raised in GE’s petition, except
the issue of whether GE’s permit should contain a dispute resolution
procedure for resolving disagreements between GE and the Region
over Regional revisions of interim submissions. With respect to this
issue, the Board reserved judgment because the Board had granted
review of the same issue in the Allied-Signal case discussed above.
In its November 6, 1992 order, the Board invited the parties in
this appeal to submit briefs on the questions that had been des-
ignated in the order scheduling oral argument in Allied-Signal. Sub-
sequently, the Allied-Signal case was settled prior to oral argument,
and the Board directed (rather than invited) GE and the Region
to file briefs on the questions specified in the Allied-Signal case
by February 10, 1993. In addition, the Board directed GE and the
Region to prepare for oral argument on those same questions. For
purposes of the oral argument, the Board later consolidated this
case with In Re UOP, Shreveport Plant, RCRA Appeal No. 91-21,
which involves the same issues. The oral argument was held on
February 14, 1993.

Il. DISCUSSION

Before turning to GE’s arguments, it is first necessary to address
the Region’s argument that this case is not ripe for disposition. In
support of this argument, the Region cites the decision of the U.S.
Court of Appeals for the First Circuit in WR. Grace. and Co.—
Conn. v. EPA, 959 F.2d 360 (1st Cir. 1992), in which the permit
provisions at issue in the Agency's Grace decision were appealed.
The First Circuit found that the permittee’s claim in that appeal
was not ripe for disposition because there was no concrete dispute
over a particular revision of an interim submission. /d. at 365.

We reject the Region’s ripeness argument. The judicial doctrine
of ripeness applied by the First Circuit in its Grace decision to deter-
mine whether it should decline to hear a challenge to the Agency’s
action has no direct application in the context of a permit proceeding
within the Agency. Moreover, this appeal is clearly fit for disposition
at this time. Under 40 CFR §124.19(a), the Board has authority
to “review any condition” of a “final permit decision.” This authority
extends to challenges that call for some change in the language
of the permit, either to modify or remove language already contained
in the permit or to add language that should be in the permit.”

7The challenge must be to the permit as it reads at the time of issuance. Thus,

when a petitioner is not challenging the language of the permit as it reads at the
time of issuance, but is really challenging the way the Region might implement the

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Accordingly, in the context of permit appeals under Section 124.19(a),
an appeal is “ripe” or fit for disposition by the Board if a final
permit decision has been issued by the Region, and the petitioner
is challenging the permit as it now reads. In this case, the Region
has issued a final permit decision, and GE is challenging the permit
as issued. It is taking the position that the permit, as it now reads,
is defective because of the absence of a dispute resolution provision
in the permit. This objection to the permit is thus properly before
the Board and appropriate for disposition.

A. Modification of the Permit

Under 40 CFR § 270.41, which governs Agency-initiated modifica-
tions of RCRA permits, the Agency may modify a permit if it deter-
mines that one or more “causes for modifications” are present. The
causes for modification are listed in the regulation. One of those
causes is that the Region has received information that was not
available at the time of permit issuance and which would have justi-
fied the application of different permit conditions at the time of
issuance if it had been available. GE argues that, when the Region
revises an interim submission, it is doing so on the basis of new
information gathered by the permittee that was not available at the
time the permit was issued and that, if such information had been
available at the time of permit issuance, the permit would have
contained “different” permit terms. GE argues that, inasmuch as
the Region is modifying the permit within the meaning of Section
270.41, it must accomplish the modification in accordance with that
section and Part 124.8

Region I argued at oral argument and in its brief that the modi-
fication regulations were promulgated before 1984 and do not really

permit, the Board has declined to consider such a challenge. See General Electric,
RCRA Appeal No. 91-7, at 14 (EAB, November 6, 1992).

8GE also argues that the Agency’s position that revisions of interim submissions
are not “modifications” of the permit for purposes of the formal modification procedures
in Section 270.41 and Part 124 clearly implies that permittees have no right to
judicial review of those requirements under §7006(b). We need not dwell for long
on GE’s suggestion that the Agency is somehow improperly depriving GE of its statu-
tory right to judicial review because, as GE itself concedes, “[a] decision by the EPA
Administrator cannot actually deprive a permittee of a statutory right to judicial
review; if such a right exists, the courts will enforce it.” GE Supplemental Brief,
at 27. We note, however, that in holding that a revision of an interim submission
by the Region is not a “modification” of the permit subject to the formal modification
procedures in Section 270.41 and Part 124, neither the Grace decision nor this Board
expresses or implies any position about the availability of judicial review under RCRA
Section 7006(b). See note 22 infra.

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624 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

speak directly to the issue of interim submissions as part of the
corrective action process. The Region argues that the regulation on
its face applies to new information which would have justified dif-
ferent permit conditions. Here, the Region argues, the new informa-
tion gathered by the permittee does not justify permit conditions
different from those in the permit, but rather merely implements
and satisfies the information-gathering conditions already in the per-
mit.

We agree with the Region’s position. The new information pre-
sented in the interim submission is not the kind of new information
contemplated in Section 270.41. The new information contemplated
in that section comes to light unexpectedly and changes an erroneous
assumption on which the original permit was based, and it leads
to the removal or alteration of inappropriate permit terms that were
based on the erroneous assumption. By contrast, the new information
presented in an interim submission comes to light in accordance
with the process established in the original permit precisely for the
purpose of generating that supplementary information. It does not
rectify a mistake or change a fundamental assumption in the original
permit. It is used merely to make obligations that are already in
the permit more specific. Thus, although there is no question that
the incorporation of a revised interim submission as an enforceable
part of the permit changes the existing permit, the change occurs
automatically through the operation of the permit and not at the
initiation of the Agency. Final Permit, at 86, 97, 105, 112. The fact
that a Region revises the interim submission does not change this
analysis. When the Region revises an interim submission, it is exer-
cising its authority under the existing permit language to ensure
that the contemplated studies and investigations are adequate for
selection of corrective remedies. The Region’s revisions are part of
a process contemplated in the original permit by which the general
terms of the original permit are made more specific. Thus, when
the Region makes such revisions, it is fulfilling the terms of the
permit, not changing them. For all the foregoing reasons, we conclude

91n its brief, GE implicitly takes the position that a modification subject to Section
270.41 does not occur when an uncontested interim submission becomes an enforceable
part of the permit. At oral argument, however, GE’s counsel was asked whether
a modification subject to Section 270.41 occurs when an uncontested interim submis-
sion becomes an enforceable part of the permit. GE’s counsel responded that it is
not an issue in this case and conceded that he had not thought much about whether
a member of the public would be able to argue that an uncontested interim submission
would be a modification. Hearing Transcript, at 15-16. GE has provided no supportable
distinction to show why, under § 270.41, contested and uncontested submissions should
be treated differently. In our view, for purposes of §270.41, they should be treated
the same; neither is a permit modification.

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that Regional revisions to interim submissions are not appropriately
characterized as modifications of the permit subject to the formal
modification procedures of Section 270.41 and Part 124.

Subpart S: GE argues that support for its position can be found
in the preamble to the proposed Subpart S rule. The Subpart S
rule would establish a comprehensive regulatory framework for imple-
menting the Agency’s corrective action program. The proposal is rel-
evant because it “constitutes the Agency’s most recent comprehensive
statement of its views regarding corrective action under RCRA
§3004(u).” Sandoz Pharmaceuticals Corporation, RCRA Appeal No.
91-14, at 9 (EAB, July 9, 1992); see also W.R. Grace & Company,
RCRA Appeal No. 89-28 (Adm’r, March 25, 1991). The Subpart S
rule provides for a set of streamlined procedures for modifying sched-
ules of compliance in a corrective action program. 55 Fed. Reg. 30,883
(proposed 40 CFR §270.34(c)). The new procedure is less time-con-
suming than the modification procedure contained in Section 270.41
because the results of the procedure may be appealed directly to
a court, thus bypassing administrative review. The Region would
be able to use the new procedure as an alternative to Section 270.41
in cases where the Region believes that time is of the essence. The
preamble to the Subpart S proposal notes that this abbreviated modi-
fication procedure “provides a mechanism to resolve disputes which
may arise between the permittee and the Agency concerning the
scope or meaning of conditions in the schedule of compliance when
those disagreements cannot be resolved through less formal means.”
Id. at 30,847. For example, the procedure could be used when dis-
putes arise over “the scope of remedial investigation and how many
monitoring wells may need to be installed, or the appropriate soil
sampling procedure.” Id. at 30,849. GE believes that this procedure
is intended to be available for the resolution of disputes over revisions
to interim submissions. GE argues, therefore, that the proposed Sub-
part S rule recognizes that imposition of subsequent requirements
on permittees through revision of interim submissions constitutes
a permit modification, albeit with procedures different from those
currently in Section 124.19.

We disagree with GE’s argument that the Subpart S proposal
supports its position. The preamble to the proposed corrective action
rule makes quite clear that when a permit provides that interim
submissions will become enforceable obligations under the permit,
those submissions (even if revised by the Region) become part of
the permit not through a modification procedure but by operation

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626 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

of the permit. 55 Fed. Reg. at 30,812.19 GE argued at oral argument
that the cited passage only applied to “approved” interim submissions
and therefore has no relevance to this case, but the passage clearly
applies to interim submissions that have been approved after being
revised by the Region.

The preamble’s discussion of the abbreviated modification proce-
dure also provides no support for GE. That procedure applies only
to Agency-initiated modifications of the schedule of compliance. At
issue here, however, are changes to the permit that occur not at
the initiation of the Agency but by operation of the permit. Moreover,
the preamble discussion makes clear that the abbreviated modifica-
tion procedures would apply to revisions of interim submissions only
after those submissions have become enforceable obligations of the
permit:

It is important to note that for the purposes of this
provision * * *, any plan submitted by the permittee
pursuant to a schedule of compliance and approved
by the Director, becomes an enforceable part of the
schedule. Accordingly, modifications to such plans
will be required to follow the appropriate procedures
of § 270.41, 270.42, or 270.34(c).

Id. at 30,848 (emphasis added). Thus, the quoted passage makes
clear that changes to interim submissions only constitute modifica-
tions of the permit after the interim submissions are approved by
the Region and incorporated into the permit. Finally, we note that

10The preamble provides as follows:
Plans for conducting remedial investigations would be subject to
review and approval or modification by the Regional Adminis-
trator. When a workplan submitted for the Regional Administra-
tor’s approval does not adequately address all elements of the
investigation, the Regional Administrator may either disapprove
the plan and return it to the permittee for review, or make modi-
fications to the plan and return the modified plan to the owner/
operator as the approved plan. * * * An approved plan will estab-
lish both requirements applicable to the conduct of the investiga-
tion and a schedule for its implementation. Section 264.512(b)
would provide regulatory authority for enforcing compliance with
the approved plan, which becomes an enforceable part of the per-
mit schedule of compliance. In most cases, it is expected that the
initial permit will specify that the plan becomes an enforceable
component of the permit upon approval. Alternatively, the permit
may be modified to incorporate the provisions of the approved
plan.
(Emphasis added.)

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GENERAL ELECTRIC COMPANY 627

GE’s interpretation of the Subpart S proposal was rejected in the
Agency’s Grace decision. In re W.R. Grace & Company, RCRA Appeal
No. 89-28 (Adm’r, March 25, 1991). That decision was issued by
the same Administrator who signed the Subpart S proposal, giving
particular credence to his interpretation of that proposal. For all
the foregoing reasons, we reject GE’s contention that its position
finds support in the Subpart S proposal.

B. The Due Process Requirements for an Administrative Hearing

GE argues that even if the revision of an interim submission
and its incorporation as an enforceable obligation of the permit do
not constitute a modification of the permit subject to the procedures
of Section 270.41, the Agency is nevertheless required under the
due process clause to give GE an opportunity for a hearing to voice
its objections before GE is required to comply with a revised interim
submission. GE believes, therefore, that the permit should contain
a dispute resolution provision that provides for an administrative
hearing and subsequent judicial review.

The due process clause of the Fifth Amendment to the U.S.
Constitution provides that the government may not deprive a person
of his or her property without due process of law. Essentially, the
due process clause guarantees that before a deprivation of property
occurs, the person being deprived must be given notice of the impend-
ing deprivation and an opportunity for a hearing at which he or
she can present reasons why the deprivation should not take place.!!
What form this “hearing” will take depends on the type of case
involved.}2 In one type of case, the hearing might be a formal, evi-
dentiary hearing with many of the procedural safeguards associated
with court proceedings, like the right to cross-examine adverse wit-
nesses.!3 In another type of case the hearing might be nothing more
than an informal meeting with a person who has authority to prevent

11 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted) (“The fun-
damental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’”); Cleveland Board of Education v. Loudermiil,
470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation
of life, liberty, or property ‘be preceded by notice and opportunity for hearing appro-
priate to the nature of the case.’”) (citation omitted).

12 Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“{D]ue process is flexible and
calls for such procedural protections as the particular situation demands.”); Buttrey
v. United States, 690 F.2d 1170, 1178 (5th Cir. 1982) (“A procedure that seems perfectly
reasonable under one set of circumstances can, with only a slight modification of
the facts, suddenly ‘smack * * * of administrative tyranny.’”) (citation omitted).

13 See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits).

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628 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the deprivation. In still another type of case, just the opportunity
to present objections in writing (a “paper hearing”) without the oppor-
tunity for an oral presentation is enough to satisfy due process. 15
The nature of the hearing required by due process in a particular
type of case (i.e., which procedures will be used in conducting the
hearing), is determined by weighing the interests of the person being
deprived of property, the burden on the government of providing
the particular procedures at issue, and the value of the procedures
in reducing the risk of an erroneous determination. 16

In analyzing GE’s due process argument, we consider below (1)
whether the revision of an interim submission constitutes a signifi-
cant deprivation of GE’s property, thus requiring the Region to pro-
vide GE with the opportunity for a hearing, i.e. an opportunity to
dispute the revision;!7 (2) if the Region must provide GE with the
opportunity to dispute the revision, whether the dispute resolution
procedure proposed by the Region in this case or the dispute resolu-
tion procedure developed by the various Regions subsequent to the
Grace decision satisfy due process; and (3) if the Region must provide
GE with the opportunity to dispute a revision to an interim submis-
sion, whether the permit should be used as a vehicle to set out
the elements of a dispute resolution procedure.

A Deprivation of Property: The first question to be answered
is whether a deprivation of property occurs when a permit is revised
to require compliance with a revision to an interim submission. We
believe that one does. As GE argues, once a permit has been granted,
the permittee has a constitutionally protected property interest in
that permit. Kerley Industries, Inc. v. Pima County, 785 F.2d 1444
(9th Cir. 1986). Because interim submissions flesh out a permit that
is written in general terms, a revision to an interim submission
has a material and, not infrequently, substantial effect in defining
the permittee’s obligations under the permit. In most cases, the Re-
gion’s interpretation of what the original terms of the permit require
will be more costly to fulfill than the permittee’s interpretation of

14Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, n.17 (1978) (“The
opportunity for informal consultation with designated personnel empowered to correct
a mistaken determination constitutes a ‘due process hearing’ in appropriate cir-
cumstances.”).

15 Mathews v. Eldridge, 424 U.S. at 344-47,

16 Td.

17 As used in this context, the term “hearing” means only an opportunity to present
reasons why the interim submission should not be revised. It does not mean a formal
trial-like proceeding with all the procedural safeguards associated with court proceed-
ings.

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GENERAL ELECTRIC COMPANY 629

what the original terms of the permit require. Region I apparently
agrees with the conclusion that a deprivation of property occurs,
for it did not dispute GE’s assertion that there is a deprivation
in any of its briefs or at oral argument. In addition, several courts
have assumed without discussion that an Agency decision requiring
a person to comply with a requirement of RCRA can result in a
deprivation of property for purposes of the due process clause. See,
e.g., Chemical Waste Management, Inc. v. U.S. E.P.A., 873 F.2d 1477
(D.C. Cir. 1989); W.R. Grace & Co.—Conn. v. U.S. E.P.A., 959 F.2d
360, 365 (1st Cir. 1992). Having concluded that a deprivation of
property occurs, we consider next what kind of a hearing the Agency
must provide.

The Dispute Resolution Provisions: In the Agency's Grace deci-
sion, the Administrator stated that, until the Agency formally promul-
gates a hearing procedure for disputes over Regional revisions to
interim submissions, the Regions are expected to ensure that each
permittee “receives an adequate opportunity to be informed of, and
to respond to, any Regional revisions to the interim submissions
prior to Regional approval.” Grace, at 4. In response to that decision,
each Region has developed a dispute resolution provision to be in-
cluded in corrective action permits that gives the permittee an oppor-
tunity to voice any objections it may have to Regional revisions of
interim submissions. Transcript at 64-65. Although the dispute reso-
lution provisions developed by the Regions are similar, they are not
uniform, and an Agency-wide position on the content of such clauses
has not been articulated, at least not in writing. Transcript at 65.
At oral argument, Region I laid out the elements of the dispute
resolution clauses developed by the Regions, as follows:

—The permittee has the right to submit written
statements to staff members responsible for making
the disputed revisions and to meet informally with
such staff members.

—The permittee has the right to meet with someone
higher up in the chain of command within the Region
who will serve as the final decision-maker. In some
Regions, this person is the Regional Administrator.
In other Regions, the permittee may meet with the
Regional Administrator or his or her delegate. In
other Regions, the permittee has a right to meet
with the Director of the Waste Management Division.

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630 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

—The Region must issue a written decision on a

written record, responding to the evidence and argu-

ments of the permittee.
Transcript at 52, 65, 78-79. It is not clear whether the Regions
believe that the procedures they have developed in response to the
Grace decision represent the minimum required by due process or
whether they are meant to provide more protection than is required
by due process. Transcript at 78, 88-89.

The permit at issue here does not contain a dispute resolution
provision. During settlement negotiations, however, the Region did
offer to include such a provision in GE’s permit. Exhibit D, GE
Supplemental Brief. Under the proposed provision, GE would be able
to meet with unspecified Regional staff members, and if such a meet-
ing does not lead to a resolution, the Waste Management Division
Director would make the final decision on the dispute. It is not
clear whether the permittee would have the right to meet with the
Division Director.18

GE’s Argument: GE argues that the dispute resolution procedure
offered by the Region is inadequate for the following reasons. First,
GE believes that the Waste Management Division Director, by virtue
of his or her close relationship to the Regional permitting staff, sim-
ply cannot be expected to act with the impartiality required by due
process. In GE’s view, only the Regional Administrator or the director
of another division within the Region would come close to having
the requisite degree of impartiality. GE maintains, however, that
no one who works within the Region can be sufficiently impartial
to satisfy due process completely. Any decision made by the Region
will be tainted by institutional bias, according to GE. GE believes
that this taint of bias can only be cured for purposes of due process

18The Region suggested that 40 CFR §270.42 provides permittees with an oppor-
tunity for an adequate due process hearing. Under that section, a permittee could
get a hearing in front of the Board simply by requesting a permit modification to
remove a revised interim submission from the permit. The denial of that request
could then be appealed to the Board. We are of the view, however, that Section
270.42 does not provide permittees with an adequate due process hearing because,
when a permittee requests modification of the permit under Section 270.42, the con-
tested permit provisions are not stayed during the pendency of the proceedings. Thus,
the hearing is really a post-deprivation hearing rather than a pre-deprivation hearing.
As was held in the Agency’s Grace decision, however, due process requires that “the
permittee receives an adequate opportunity to be informed of, and to respond to,
any Regional revisions to the interim submissions prior to Regional approval.” In
re W.R. Grace & Company, RCRA Appeal No. 89-28, at n.5 (March 25, 1991) (emphasis
added).

VOLUME 4
GENERAL ELECTRIC COMPANY 631
if GE is able to obtain judicial review of the decision before GE
is required to comply with the disputed permit requirement or face
an enforcement action and possible penalties. GE argues, therefore,
that due process requires the Agency to provide that the Region’s
decision on a dispute over revisions of interim submissions will con-
stitute final agency action, thereby opening the way for GE to seek
pre-enforcement judicial review of the decision. Transcript at 25—
28.

Below we discuss GE’s arguments relating to the impartiality
of the decisionmaker and the need for judicial review. We also discuss
the issue of whether the right to make an oral presentation to the
decisionmaker is required by due process in the context of revisions
of interim submissions. The need for this procedural safeguard was
raised by GE but was not contested by the Region, and in fact,
the Region represented at oral argument that the right to make
an oral presentation to the final decisionmaker is included in the
dispute resolution provisions currently being used by the Regions.
We nevertheless discuss this safeguard below because we believe
that whatever policy considerations may militate in its favor, it is
not an essential element of due process in the context of revisions
of interim submissions.

In its Supplemental Brief on Appeal, GE mentioned four other
procedural safeguards as essential requirements of the due process
hearing that the Region must provide to GE in the event of a dispute
over a revision of an interim submission: (1) the hearing must take
place before the permittee is expected to comply with the revision
to an interim submission; (2) notice detailing the Region’s reasons
for proposing to revise or require revision to the interim submission;
(3) a decision based on the record; (4) a statement of reasons explain-
ing the Region’s final decision and responding to the arguments sub-
mitted by GE. The need for these four safeguards was not disputed
by the Region either in its brief or at oral argument, and in fact
the third and fourth safeguards are included in the dispute resolution
procedures laid out by the Region at oral argument. Accordingly,
we do not address these four safeguards below. We note, however,
that these four safeguards are already required either implicitly or
explicitly by the Administrator's Grace decision. W.R. Grace & Com-
pany, RCRA Appeal No. 89-28, at 3-4 & n5 (Adm’r, March 25,
1991).19

19Two other safeguards that are among the panoply of possible procedural safe-
guards are the right to be represented by retained counsel and the right to cross-
examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 269-271 (1970). These

Continued
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632 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Mathews v. Eldridge: In determining whether a particular proce-
dural safeguard is required by due process in the context of a dispute
over a revision to an interim submission, it is necessary to go through
the familiar three-step inquiry set out by the U.S. Supreme Court
in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). That inquiry in-
cludes the following considerations:

(1) the private interest that will be affected by the official action;

(2) the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards;

(3) the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.

Before we discuss the particular safeguards at issue here, some
general observations about the application of the Mathews v. Eldridge
test are in order. First, when evaluating the burden on the Agency
of providing any particular safeguard in its hearing procedure, we
are mindful that, to date, the Agency did not identify a single in-
stance where a permittee has availed itself of the formal dispute
resolution provisions that the Regions have been putting into permits
since the Grace decision was issued. Transcript at 75. Moreover,
as a practical matter, we would expect that permittees will not want
to squander the good will of Regional staff by invoking the dispute
resolution procedures with frivolous and dilatory objections.

As for the interests of permittees, such interests will vary accord-
ing to the particular circumstances of each case. In exceptional cases,
Regional revisions could conceivably involve costs of millions of dol-
lars while the vast majority of revisions will involve increased costs
of nowhere near that much. Because the financial stakes can vary
so widely from case to case, it is conceivable that the procedural
protections that would satisfy due process in ordinary cases might
not satisfy due process in a case involving extraordinarily high finan-

two safeguards were not raised by GE, and we have not addressed them in our
discussion in the text. With respect to cross-examination, however, we note that the
right to cross-examine witnesses is not included in the procedures of 40 CFR Part
24, governing challenges to RCRA §3008(h) corrective action orders, or even in the
procedures in Section 270.41, governing Agency-initiated permit modifications. GE
agrees that either set of procedures would satisfy due process in this case.

VOLUME 4
GENERAL ELECTRIC COMPANY 633

cial stakes.2° In such an extraordinary case the interest of the permit-
tee might tip the Mathews v. Eldridge balance in the direction of
more procedural protection. This possibility was recognized by the
U.S. Court of Appeals for the First Circuit in its decision in W.R.
Grace & Co.—Conn. v. U.S. E.P.A., 959 F.2d 360, 365 (1st Cir. 1992):

We suspect that the magnitude of any dispute be-
tween the parties—whether EPA requires the com-
pany to drill an additional five or five hundred sam-
pling wells over Grace’s objection, for example—will
shape our judgment as to what the Constitution re-
quires.

At oral argument, the Region also recognized this possibility, noting
that the dispute resolution procedures developed by the Regions
would not necessarily be adequate in all cases:

EPA’s dispute resolution provision was drafted to ac-
commodate the great majority of disputes arising out
of interim submissions. It is EPA’s intent to provide
additional process where the facts of a specific situa-
tion warrant such additional process.

Transcript at 67. In extraordinary cases, counsel for the Region sug-
gested that the modification procedures at Section 270.41 might be
appropriate, although he was careful to note that the Agency still
would not regard the revision as a permit modification. Transcript
at 61.

In light of the possibility that cases involving extraordinarily
high financial stakes might warrant extra procedural safeguards, the
conclusions in this opinion as to what due process requires in the
context of revisions of interim submissions, while holding true in
the vast majority of cases, should not be taken to apply to such
extraordinary cases. We recognize that in some cases, due process
may require the Regions to offer more procedural protection than
is afforded by the dispute resolution procedures. We must of necessity
leave it to the Regions to determine on a case by case basis which
cases warrant such special treatment.

20 Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“[D]ue process is flexible and
calls for such procedural protections as the particular situation demands.”); Buttrey
y. United States, 690 F.2d 1170, 1178 (5th Cir. 1982) (“A procedure that seems perfectly
reasonable under one set of circumstances can, with only a slight modification of
the facts, suddenly ‘smack * * * of administrative tyranny.’”) (citation omitted).

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634 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Having made those general observations, we turn now to consider
the impartial decisionmaker requirement, the need for judicial review,
and the right to make an oral presentation to the final decisionmaker.

Impartial Decisionmaker: In the dispute resolution provision of-
fered to GE during settlement negotiations, the final decisionmaker
is the Region’s Waste Management Division Director. In the Agency's
current dispute resolution procedures as described by the Region
at oral argument, the final decisionmaker is the Waste Management
Division Director in some Regions and the Regional Administrator
or his or her delegatee in other Regions. As noted above, GE believes
that the Waste Management Division Director, because of his or
her ostensible identification with the Regional permitting staff, can-
not be expected to act with the impartiality required by due process.
In GE’s view, the Regional Administrator or the director of another
division within the Region would come closest to having the requisite
degree of impartiality, although GE believes that no person within
the Region would be completely free of institutional bias. Transcript
at 25-28. Within the framework of Mathews v. Eldridge, GE’s argu-
ment is that the risk of an erroneous deprivation would be signifi-
cantly reduced if the Regional Administrator or the director of a
division other than the Waste Management Division served as the
final decisionmaker, because they would be less influenced by institu-
tional bias than the Waste Management Division Director.

We are not persuaded that the risk of an erroneous deprivation
is significantly higher when the Waste Management Division Director
is the decisionmaker than when the Regional Administrator is the
decisionmaker, because we do not believe that the Waste Manage-
ment Division Director would be unduly influenced by “institutional
bias.” It is axiomatic that due process requires an impartial
decisionmaker.2! But it is also well established that, in a due process
hearing at an administrative agency, the decisionmaker need not
be independent from the agency to serve as an impartial
decisionmaker. For example, in Goldberg v. Kelly, 397 U.S. 254
(1970), which represents the high water mark of affording procedural
due process, the Supreme Court held that before the City of New
York could terminate a welfare recipient’s benefits, it must provide

21 Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (“And, of course, an impartial
decision maker is essential.”); In re Murchison, 349 U.S. 133, 136 (1955) (“A fair
trial in a fair tribunal is a basic requirement of due process.”); Hummel v. Heckler,
736 F.2d 91, 93 (3rd Cir. 1984) (“Indeed the absence in the administrative process
of procedural safeguards normally available in judicial proceedings has been recognized
as a reason for even stricter application of the requirement that administrative adju-
dicators be impartial.”).

VOLUME 4
GENERAL ELECTRIC COMPANY 635
the recipient with an opportunity for an evidentiary hearing with
an impartial decisionmaker. The Supreme Court held that the “prior
involvement in some aspects of a case will not necessarily bar a
welfare official from acting as a decision maker.” Jd. at 271. In an-
other case, Withrow v. Larkin, 421 U.S. 35, 52 (1975), the Supreme
Court held that an agency employee can serve as an impartial
decisionmaker for due process purposes, even if that employee partici-
pated in the investigation of the case over which he or she is to
preside in an adjudicative capacity. The Court noted in Withrow,
moreover, that agency employees serving in an adjudicative capacity
are presumed to act with honesty and integrity. Id. at 47. Thus,
the mere fact that the Regional permitting staff work under the
Waste Management Division Director does not by itself disqualify
the Division Director from serving as an impartial decisionmaker
for due process purposes.

The conclusion that the Waste Management Division Director
can serve as an impartial decisionmaker for due process purposes
is supported by the decision of the U.S. Court of Appeals for the
District of Columbia in Chemical Waste Management, Inc. v. U.S.
E.P.A., 873 F.2d 1477, 1484 (D.C. Cir. 1989). The Chemical Waste
decision addresses a due process challenge to the regulations at 40
CFR Part 24, which contain the procedures EPA must follow when
it imposes corrective action orders on interim status facilities under
RCRA Section 3008(h), 42 U.S.C §6928. Part 24 provides for a hear-
ing conducted by a presiding officer. Under Part 24, that presiding
officer can be any attorney who has had no prior connection to the
case. The permittee in the Chemical Waste case argued that Part
24 procedures did not ensure an impartial decisionmaker because
even if the presiding officer meets the criterion of having no prior
connection to the case he or she might still be influenced by “institu-
tional biases and prosecutorial zeal.” Id. at 1484. In rejecting this
argument, the Court relied on Withrow v. Larkin, 421 USS. 35 (1975),
in which the Supreme Court ruled that investigative and adjudicative
functions could be combined in a single decisionmaker without nec-
essarily violating due process. The Court also noted that there is
a “presumption of honesty and integrity in those serving as adjudica-
tors.” Chemical Waste, 873 F.2d at 1484. Similarly, we conclude that
the Division Director is not prevented by “institutional bias” from
serving as an impartial decisionmaker for due process purposes.

For policy reasons, however, we believe that the final
decisionmaker for the Agency should be the person with authority
to issue the final permit decision itself. Since interim submissions

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636 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

substantially define the obligations of the permit, Regional revisions
to interim submissions can have very significant financial con-
sequences for the permittee, comparable to the consequences flowing
from the terms of the original permit. Therefore, we believe that
as a matter of fairness to the permittee, the person within the Region
who has final authority to issue the original permit should also be
the final decisionmaker in any dispute over a revision to an interim
submission. In that way, decisions on disputes over revisions to in-
terim submissions would be treated with the same importance as
decisions pertaining to the original permit. By the same token, dis-
putes over revisions of interim submissions should not be given more
importance than decisions relating to the original permit. Thus, if
the Division Director holds delegated authority to make final deci-
sions on the original permit, it would be inappropriate and incon-
gruous to send the dispute to the Regional Administrator, since that
would give decisions on disputes over revisions of interims submis-
sions more importance than is given to decisions on the original
permit decision itself. Thus, the Board is of the view that, for policy
reasons, the dispute resolution provisions in corrective action permits
should provide that the final decisionmaker in disputes over revisions
to interim submissions is the person within the Region who has
delegated authority to make final decisions on the original permits.

We do not believe that such a requirement will be unduly burden-
some in those Regions where the Regional Administrator has retained
authority to make final decisions on the original permit. We note
that according to Agency counsel, this is already Agency practice
in a number of Regions, and further, to date, not a single permittee
has invoked the dispute resolution provisions that Regions began
putting into permits in response to the Grace decision. Transcript
at 75. We also think that any potential burden is mitigated by our
finding that there is no due process right to make an oral presen-
tation to the final decisionmaker. See infra at p. 28.

Judicial Review: While GE believes that the Regional Adminis-
trator comes closer to having the requisite degree of impartiality
for due process purposes than the Waste Management Division Direc-
tor, GE maintains that no one who works within the Region can
be sufficiently impartial to satisfy due process completely. Any deci-
sion coming out of the Region will be tainted by institutional bias,
according to GE, and the taint of bias can only be cured for purposes
of due process if GE is able to obtain judicial review of the decision.
GE argues, therefore, that the Agency cannot fully satisfy the require-
VOLUME 4
GENERAL ELECTRIC COMPANY 637
ments of due process unless it provides that the Region’s decision
will constitute final agency action, thereby opening the way for GE
to seek judicial review of the decision under the Administrative Proce-
dure Act. Transcript at 25-28.

We do not believe that the Agency is required by due process
to provide in the permit that the Region’s decision will constitute
final agency action. Even if due process requires that the administra-
tive hearing in the context of a revision to an interim submission
be followed by an opportunity for judicial review, such an opportunity
will be available to GE even if the permit does not provide that
the Region’s decision is final agency action. At oral argument the
Region took the position that a permittee will be able to obtain
judicial review of a revision of an interim submission in an enforce-
ment action for failure to comply with the interim submission. It
is not clear whether the Region believes such review would be de
novo or deferential, but it is clear that the Region believes the under-
lying obligation could be challenged in an enforcement proceeding.
Transcript at 56.22

The Region acknowledged, however, that during the pendency
of an enforcement proceeding, daily penalties would continue to accu-
mulate even if GE were challenging the underlying permit obligation
that formed the basis for the enforcement action. Transcript at 74.
Because of these accumulating penalties, GE argues that the oppor-
tunity for review during an enforcement action would not be meaning-
ful because no rational permittee would risk accumulating daily pen-
alties to find out whether the challenged permit term is improper.
In support of its argument, GE cites a line of cases beginning with
Ex Parte Young, 209 U.S. 123 (1975), that stand for the proposition
that:

[O]ne has a due process right to contest the validity
of a legislative or administrative order affecting his
affairs without necessarily having to face ruinous
penalties if the suit is lost. The constitutional re-
quirement is satisfied by a statutory scheme which
provides for an opportunity for testing the validity
of statutes or administrative orders without incur-
ring the prospect of debilitating or confiscatory pen-
alties.

22 We leave it for the courts to decide whether GE would have an earlier oppor-
tunity for judicial review under the Administrative Procedure Act.

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638 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Brown v. Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1119
(2nd Cir. 1975) (emphasis in the original).

We are unpersuaded by GE’s argument. If an enforcement action
with accumulating daily penalties represented GE’s only opportunity
to contest the validity of a revision of an interim submission, GE’s
argument might have some force. But in this case, GE will have
an opportunity for a hearing at the administrative level before it
is expected to comply with a revision. Even if GE is correct that
such an administrative hearing must be followed by some form of
judicial review to satisfy due process,2? we are convinced that the
combination of a hearing before the Agency followed by the oppor-
tunity for judicial review at the enforcement stage of the proceedings
is all that due process requires. This conclusion is supported by
the decision of the U.S. Court of Appeals for the First Circuit in
U.S. v. Charles George Trucking Co., 823 F.2d 685, 691-92 (1st Cir.
1987). In that case, the owners of a hazardous waste dump received
a written request for information from EPA. When the owners failed
to respond to the request, EPA successfully sued the owners in fed-
eral court for civil penalties for their failure to respond. On appeal,
the owners, citing Ex Parte Young, argued that their due process
rights had been violated because their only opportunity to challenge
EPA’s information request was in the enforcement action when daily
penalties were accumulating. The Court rejected this argument be-
cause EPA had notified the owners that failure to respond could
result in an enforcement action and had offered them an opportunity
to justify their failure to respond to the information request. Because
the Court was satisfied that EPA had given the owners the notice
and opportunity to respond that due process requires, it rejected

23Courts have recognized that when an administrative agency provides a full
hearing at the administrative level with all of the procedural safeguards that are
appropriate under the circumstances, due process does not require that the administra-
tive hearing be followed by judicial review. See Ortwein v. Schwab, 410 U.S. 656
(1973) ($25 filing fee to seek review of administrative decision in appellate court did
not violate due process rights of indigents, where they received an adequate hearing
at the administrative level); Saharoff v. Stone, 638 F.2d 90, 92 (9th Cir. 1980) (judicial
review was not an essential element of due process where Saharoff participated in
an adversary proceeding before an administrative law judge); Heirs of Garvey v. Sion
Farm Esso Service Center, 838 F.2d 98, 100 (3rd Cir. 1988) (Due process did not
require judicial review of decision of the Virgin Islands Criminal Victims Compensation
Commission denying claim for compensation, where the relevant act provided for con-
tained adequate procedural means for fair determinations at the agency level). Cf
Haskell v. U.S. Department of Agriculture, 930 F.2d 816, 820 (10th Cir. 1991) (“Al-
though Haskell was not afforded an evidentiary hearing at the administrative level,
he sought and received de novo review of the administrative decision from the district
court. When such an opportunity for judicial review exists, the lack of an evidentiary
hearing at the administrative level is not a denial of due process.”).

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GENERAL ELECTRIC COMPANY 639
their Ex Parte Young argument. Id. at 690-92. Similarly, because
we believe that the dispute resolution procedures developed by the
Regions and refined in this decision will provide GE with notice
and an adequate opportunity to respond, we reject GE’s Ex Parte
Young argument.

Oral Presentation of Evidence and Arguments: The dispute resolu-
tion provision offered to GE during settlement negotiations provides
that in the event the permittee is not able to reach an agreement
with unspecified Regional staff members, the dispute will be decided
by the Waste Management Division Director. It is not clear from
the proposed provision whether the permittee would have the right
to make an oral presentation to the Division Director. As noted above,
the dispute resolution provisions developed by the Regions, as laid
out by Region I at oral argument, provide that the permittee has
a right to make an oral presentation to Regional staff members,
and in the event no agreement is reached, the permittee has the
right to make an oral presentation to someone higher up in the
Regional organization (in some Regions, the Waste Management Divi-
sion Director, and in other Regions, the Regional Administrator or
his or her delegatee). Transcript at 52. While the dispute resolution
procedures described by Region I at oral argument give the permittee
the right to make an oral presentation of its arguments to the final
decisionmaker, we are not convinced that due process requires the
Region to include that procedural safeguard. In Mathews v. Eldridge,
the Supreme Court noted that oral presentation to the decisionmaker
has less value in the context of disability benefit determinations
than it does in the welfare context of Goldberg v. Kelly, because
disability determinations, based as they are on medical diagnoses
and assessments of the recipient’s ability to work, are “amenable
to effective written presentation.” Mathews v. Eldridge, 424 U.S. 319,
345 & n.28 (1976). The same reasoning applies in the context of
this case. Corrective action determinations turn on technical data
which is amenable to effective written presentation. An oral presen-
tation to the final decisionmaker, therefore, would not significantly
reduce the risk of an erroneous determination, and any effect it
would have would be outweighed by the real (albeit modest) burden
on the Agency of providing for such oral presentation. In arriving
at this conclusion, we are mindful that the permittee will have an
opportunity to make an oral presentation to the Regional staff before
the dispute goes to the final decisionmaker.

Nevertheless, while the right to make an oral presentation to
the final decisionmaker is not compelled as a matter of due process,

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640 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
we note that the Region envisions a meeting between the permittee
and the final decisionmaker as part of the dispute resolution proce-
dure. We think this is a sound practice, and we encourage the Re-
gions to retain this feature in their dispute resolution provisions.
Providing for Dispute Resolution in the Permit: Having deter-
mined that a dispute resolution procedure is required and having
addressed what type of dispute resolution procedure is required, we
consider next whether the dispute resolution procedures should be
laid out in the permit itself. We have seen no case law to support
the proposition that due process requires that hearing procedures
for disputes over a permit must be laid out in the permit itself.
As long as the permittee is given the requisite notice and hearing
at a meaningful time, it does not matter whether the permit itself
lays out the particular hearing procedure to be used. While the ab-
sence of a hearing might violate due process, the absence of language
in the permit laying out the hearing procedure does not in itself
violate due process. Nor is there anything in the statute or the
regulations to suggest that corrective action permits are legally re-
quired to include procedures for a due process hearing in the permit.
Nevertheless, we believe that GE’s permit should include such
procedures as a matter of policy. As discussed above, the Agency
is required to provide a hearing in the event the permittee disagrees
with a Regional revision of its interim submissions. Because the
need for the hearing is created by the language of the permit as
issued, we believe that the permit itself is the best vehicle to provide
for the fulfillment of that need. Requiring the Agency to include
dispute resolution procedures in permits will best ensure that permit-
tees are informed in a timely fashion of the availability of a hearing.
Moreover, placing these procedures in corrective action permits will
give reassurance of fairness to the regulated community whose obliga-
tions under their permits remain to be spelled out at a later date.24
III. CONCLUSION
A revision by the Region of an interim submission will not con-
stitute a modification of the permit subject to the formal modification
procedures at 40 CFR § 270.41 and 40 CFR Part 124. However, before
24 Previously issued final permits that do not contain dispute resolution procedures
need not be reopened or modified to add such procedures. The policy goals to be
served by including hearing procedures in permits would not justify the burden and
disruption that would be caused by reopening or modifying all such permits. Of course,
persons holding such permits will have the same right to a due process hearing
as those holding permits with the hearing procedures specified therein.
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GENERAL ELECTRIC COMPANY 641
the Region approves the revised interim submission, it must give
GE the opportunity for a hearing,25 and the procedures for such
a hearing should be set out in GE’s permit. The hearing procedures
should be patterned after the dispute resolution provision described
by the Region at oral argument but modified as necessary to conform
with this decision. Thus, the dispute resolution provision to be in-
serted into GE’s permit should provide that, if GE and the Regional
permitting staff cannot resolve the dispute, GE will have the right
to submit written arguments and evidence to the person in the Region
who has authority to make the final permit decision for the Region,
ie., either the Regional Administrator or the person to whom the
Regional Administrator has delegated authority to make final permit
decisions. The dispute resolution provision, however, need not grant
GE the right to make an oral presentation to the final decisionmaker,
although the Board does not wish to discourage the Region from
providing this opportunity if it chooses to do so.

This case is remanded to the Region to make appropriate changes
to the permit in light of this opinion.
So ordered.
25 See note 17 supra.
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