Brush Wellman, Inc. Elmore, Ohio Facility

Plain-English summary

Brush Wellman operated a hazardous-waste facility in Elmore, Ohio. It challenged the RCRA permit’s treatment of solid waste management units and argued that the permit gave too little time for investigation, corrective-measures, and implementation work. The Environmental Appeals Board held that the final permit reflected the company’s comments on existing units. It also found that the company had not provided enough support to show that the treatment of additional units or the permit schedules warranted review. The Board denied the petition.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.13 and 124.19; 42 U.S.C. § 6901.
• Outcome: Review of the RCRA permit was denied.
• Key point: A permit petitioner must support claims of clear error or improper discretion, not rely on unsubstantiated concerns about future work and schedules.

Full text (EPA EAB public release)

210 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF BRUSH WELLMAN, INC., ELMORE,
OHIO FACILITY
RCRA Appeal No. 92-17
ORDER DENYING REVIEW
Decided August 25, 1992
Syllabus

Brush Wellman has petitioned for review of a permit issued to its Elmore, Ohio
facility by USEPA Region V covering certain hazardous waste management activities.
Brush Wellman raises three substantive concerns: The Region’s alleged failure to
consider comments on the status of certain solid waste management units (“SWMUs”);
the failure to include in the final permit additional SWMUs identified by Brush
Wellman to Region V; and the allegedly overly restrictive time periods allowed for
certain activities.

Held: The final permit does reflect the Petitioner's comments on the status of
the SWMUs. As to the lack of inclusion of the additional SWMUs and the time
periods cited in the permit, Petitioner has failed to demonstrate that review is war-
ranted. Accordingly, the Petition is denied.

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

Opinion of the Board by Judge Reich:

Brush Wellman, Inc. has submitted an Appeal and Petition to
Review (“Petition”) to the Environmental Appeals Board in accord-
ance with 40 CFR § 124.19; 57 Fed. Reg. 5335 (Feb. 13, 1992). The
Petition seeks review of certain conditions in a permit issued by
U.S. EPA Region V to Brush Wellman’s Elmore, Ohio facility under
the Solid Waste Disposal Act, as amended by the Resource Conserva-
tion and Recovery Act of 1976 (RCRA) and the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. §6901 et seq. Region
V issued the portion of the RCRA permit incorporating the require-
ments of HSWA for which the State of Ohio is not yet authorized.
The Region V permit, and a permit issued by the State covering
RCRA requirements for which it is authorized, together constitute
the RCRA permit for this facility.

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BRUSH WELLMAN, INC., ELMORE, OHIO FACILITY 211

Initially, it should be noted that under the rules that govern
this proceeding, a permit ordinarily will not be reviewed unless it
is based on a clearly erroneous finding of fact or conclusion of law,
or involves an important matter of policy or exercise of discretion
that warrants review. See 40 CFR § 124.19; 45 Fed. Reg. 33,412
(May 19, 1980). The preamble to § 124.19 states that “this power
of review should be only sparingly exercised,” and that “most permit
conditions should be finally determined at the Regional level * * *,”
Id. The burden of demonstrating that review is warranted is on
the petitioner.

Region V does not contest the timeliness of the Petition. Region
V also does not dispute that Petitioner satisfied the requirements
of 40 CFR §§ 124.13 and 124.19(a) by raising its concerns during
the comment period on the draft permit.

In this instance, Petitioner raises three substantive objections
to the permit.! The first issue relates to alleged inaccuracies and
misconceptions relative to the status of several solid waste manage-
ment units (“SWMUs”) addressed in the permit. In its comments
on the draft permit,2 Brush Wellman identified nine SWMUs listed
in Attachment II of the draft permit which Petitioner asserts were
not accurately described as to current status. The Petition states
that these comments were not addressed in the Agency’s response
to comments document.

Petitioner is correct that the Response to Comments document
summarizing the comments on the draft permit and the Region’s
response does not address these comments.3 However, the final per-
mit does reflect the input provided by Brush Wellman as discussed
below. The listing of SWMUs is contained in Attachment I to the
final permit. Since Brush Wellman indicates that it did not receive
a copy of Attachment I (see note 1, supra), it would not have known
that this was the case. For purposes of this appeal, we will assume
that Petitioner continues to object to the Region’s treatment of its

1Petitioner also raises a concern that it did not receive a complete copy of the
final permit; Attachments I, II and III were missing from the copy it received. Region
V disputes this, indicating the Brush Wellman received by certified mail one copy
of the permit with the attachments and one without. In any event, after receipt
of a copy of Brush Wellman’s Petition, the Region sent an additional copy of the
Attachments to Brush Wellman by overnight mail. We assume this resolves this con-
cern. .
2 Letter from Larry Chako, Environmental Control Department, Brush Wellman
to Thomas Manning, RCRA Permitting Branch, Region V dated January 30, 1992.
3 See Attachment E to Region V Response to the Petition.
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212 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
comments and proceed to address the adequacy of the Region’s ac-
tions in this regard.

At the request of the Board, Region V submitted a Response
to Brush Wellman’s Petition on June 22, 1992. In its Response, the
Region summarizes the changes it made in the final permit to incor-
porate Brush Wellman’s comments, as reflected in Attachment I.4
For five of the SWMUs, Brush Wellman indicated that they were
inactive and the final permit so designates them.5 Brush Wellman
further indicated that one SWMU should be removed because correc-
tive action would be taken under the NPDES program. The Region
changed the designation to “active, NPDES.” Finally, the company
indicated that three SWMUs listed as active in the draft permit
should be designated as inactive since two had been cleaned in ac-
cordance with an Ohio EPA-approved closure plan and were awaiting
closure reports and the third was converted to a drum storage facility
which was addressed in the Part B application. The final permit
continues to list these units as active but states that “[t]wo of the
three units (35-37) have been clean-closed. The Ohio Environmental
Protection Agency is currently awaiting a closure report.” Permit,
Attachment I at I-2. As for the reason for listing these three units,
the permit indicates “[t]he facility should verify the integrity of these
units.” Id.6

Thus, Region V clearly did consider Brush Wellman’s comments
and made what it determined to be appropriate modifications to the
status designations of the SWMUs. After evaluating the Region’s
response to those comments, we see no error or abuse of discretion
in the Region’s actions which warrants review and accordingly review
of this issue is denied.

The second substantive issue raised in the Petition is that it
does not include 17 additional SWMUs identified in a November
25, 1991, letter from Brush Wellman to Region V. Petitioner ex-
presses a concern that it will incur “an unnecessary financial burden
in the event work must be duplicated in the preparation of additional

4 Response at 5-6.

5We note that designating a SWMU as inactive does not obviate the need for
investigating whether there have been releases from the SWMU which require correc-
tive action.

6 While the Region’s Response does not discuss the unit converted to a drum
storage facility addressed in the Part B application, the permit allows the corrective
action workplans and reports to incorporate Part B information by reference. Permit,
Attachment II at 1.
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BRUSH WELLMAN, INC., ELMORE, OHIO FACILITY 218
RFI and CMS workplans” for these SWMUs if they are added to
the permit later. Petition at 2.

Region V, in its Response to the Petition, details the history
of correspondence between the Region and the company concerning
these additional SWMUs. Response at 6-8. The Region was first
notified of these SWMUs by telephone on November 22, 1991, and
subsequently by letter of November 25, 1991. That letter included
only the names of the potential SWMUs, with no technical docu-
mentation. To obtain the additional information necessary to deter-
mine whether some or all of these SWMUs should be added to the
final permit, the Region sent an Information Request letter to the
company on January 30, 1992. After requesting and receiving a delay
in providing a response, Brush Wellman provided the additional infor-
mation on March 20, 1992. The final permit was issued on March
31, 1992, before the additional information could be fully analyzed.

Region V argues that if Brush Wellman had submitted the req-
uisite information by the original due date, perhaps the data could
have been reviewed before final permit issuance. In any event, it
indicates that it is currently evaluating the information on the 17
potential SWMUs and if it determines that any of these SWMUs
should be incorporated into the permit, it will do so as soon as
practicable.

The Region’s approach seems technically sound and fully respon-
sive to Brush Wellman’s concerns, given the receipt of the additional
information so late in the permit process. Presumably, Region V
could have delayed issuance of the final permit until after it com-
pleted its review of the additional information but it certainly was
reasonable not to delay issuance of the final permit for this purpose.
Petitioner’s hypothetical concerns about possible duplication of effort,
especially when mitigated by Region V’s commitment to amend the
permit as soon as practicable after completing evaluation of the addi-
tional data, do not warrant review, and review is accordingly denied.7

The final substantive concern raised by Brush Wellman relates
to the time periods specified for certain activities. Brush Wellman
argues that the time periods “are restrictive and unnecessarily bur-
densome. The relatively short time allowances would likely result
in the Agency receiving workplans lacking the proper detail and

7While not a consideration in this decision, we have been advised that Region

V completed its analysis and notified Brush Wellman on June 29, 1992, that 8 of
the 17 potential SWMUs should be included in its RCRA Facility Investigation.

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214 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

of questionable quality.” Petition at 2. Brush Wellman proposes ex-
tending the submission requirements for both the RCRA Facility In-
vestigation (“RFI”) Workplan and the Corrective Measures Study
(“CMS”) Workplan from 90 days to 120 days for each submission.
It further suggests extending the dates for both RFI Implementation
and CMS Implementation from 30 days to 45 days.

Region V, in its Response to the Petition, quotes its responses
to the company’s comments on the draft permit which raised similar
concerns.’ These responses indicate that the time periods are “fair
and reasonable” and that the time periods will not be modified “un-
less Brush Wellman can justify the need for additional time through
a permit modification request.” Attachment E to Region V Response
to the Petition at 3-4. The Region asserts in its Response to the
Petition that the schedules are suitable for the Brush Wellman facil-
ity and that the proper method to raise such questions is through
a permit modification request addressed to the Regional Adminis-
trator.

We believe that Brush Wellman is free to challenge on appeal
the timeframes in the final permit, rather than seeking additional
time only through a permit modification request. In this instance,
however, the Petition fails to establish that the time periods estab-
lished by the Region are based on a finding of fact or conclusion
of law which is clearly erroneous or that they are based on an exer-
cise of discretion or important policy consideration which warrants
review. There is no support provided for the concerns Petitioner as-
serts or any justification for the extended timeframes. There are
only unsubstantiated assertions that the time periods will result in
products of questionable quality. While the Region’s rebuttal is equal-
ly conclusory, Petitioner has the burden of demonstrating that review
is warranted. Petitioner has not met this burden and review of this
issue is accordingly denied.9

For all of the foregoing reasons, review of the Petition is hereby
denied.

So ordered.

8In its comments on the draft permit, Brush Wellman suggested a 210-day period
for both the RFI and CMS Workplans and a 90-day period for RFI Implementation.
It did not suggest an alternative timeframe for CMS Implementation since the draft
permit, apparently in error, provided for 90 days for CMS Implementation.

9This denial is obviously without prejudice to the company’s ability to seek addi-
tional time through a permit modification request.

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