Adcom Wire, d/b/a Adcom Wire Company

Plain-English summary

Adcom Wire challenged corrective-action requirements in the federal portion of its RCRA permit for a wire-manufacturing facility in Jacksonville, Florida. The company argued that its rinse water was not hazardous waste stored after RCRA regulations took effect, that the state-issued portion of its permit was defective or expired, and that EPA should consider technical comments incorporated by reference. The Environmental Appeals Board held that the rinse water had the corrosivity characteristic and was stored in a surface impoundment during the relevant period. It also held that state-permit validity issues were outside federal administrative review and that Adcom had not properly presented its technical challenges. The Board denied review.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19, 124.91, 261.22, 264.1, and 271.134; 42 U.S.C. § 6926.
• Outcome: Review of Adcom's RCRA permit appeal was denied.
• Key point: A permit petitioner must identify and support its federal review issues, and cannot obtain federal administrative review of issues belonging solely to a state-issued permit.

Full text (EPA EAB public release)

ADCOM WIRE, D/B/A/ ADCOM WIRE COMPANY 221

IN THE MATTER OF ADCOM WIRE, D/B/A/ ADCOM
WIRE COMPANY

RCRA Appeal No. 92-2

ORDER DENYING REVIEW

Decided September 3, 1992

Syllabus

Adcom Wire Company seeks review of the corrective action requirements in
the federal portion of a RCRA permit issued by EPA Region IV for Adcom’s wire
manufacturing facility in Jacksonville, Florida. During the relevant period, Adcom’s
wire cleaning process generated rinse water as an effluent. For a time (the parties
dispute how long), the rinse water was held in a rubber-lined surface impoundment
before treatment. The corrective action requirements being challenged here were im-
posed to address releases caused by the use of the surface impoundment to hold
the rinse water. Adcom argues that the Region does not have authority to issue
the federal portion of the permit because: (1) Adcom did not treat, store, or dispose
of hazardous waste after November 19, 1980, when the applicable RCRA regulations
became effective; and (2) the state-issued portion of the permit has expired and was
invalid to begin with because the permit application submitted by Adcom to the
State of Florida was defective. Adcom also argues that, if the Region does have
authority to issue the HSWA permit, the permit should be changed to reflect certain
technical comments that Adcom submitted to EPA during the comment period on
the draft permit.

Held: (1) the Region was not clearly erroneous in its determination that the
rinse water generated by Adcom’s facility was a hazardous waste subject to regulation
under RCRA; (2) whether the state-issued portion of the permit is defective or has
expired are issues that relate solely to the state-issued portion of the permit and
are neither subject to federal administrative review nor relevant to the validity of
the EPA-issued HSWA portion of the permit; and (3) Adcom’s incorporation by ref-
erence of certain “technical comments” that Adcom made during the comment period
on the draft permit does not meet the requirements of 40 CFR § 124.19%a). Review
of Adcom’s petition is therefore denied.

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

Opinion of the Board by Judge Firestone:
Adcom Wire Company seeks review of the corrective action re-

quirements in the federal portion of a permit issued to Adcom by

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222 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

U.S. EPA Region IV under the Hazardous and Solid Waste Amend-
ments (HSWA) to the Resource Conservation and Recovery Act of
1976 (RCRA), for Adcom’s wire manufacturing facility in Jacksonville,
Florida.1 Adcom argues that the Region does not have jurisdiction
to issue the permit because: (1) Adcom did not treat, store, or dispose
of hazardous waste after November 19, 1980, when applicable RCRA
regulations became effective; and (2) the State-issued portion of the
permit has expired and was invalid to begin with because the permit
application submitted by Adcom to the State of Florida was defective.
Adcom also argues that, if the Region does have authority to issue
the HSWA permit, the permit should be changed to reflect certain
technical comments that Adcom submitted to EPA during the com-
ment period on the draft permit. As requested by the Agency’s Judi-
cial Officer, the Region filed a response to the petition for review.2
For the reasons set forth below, review of Adcom’s petition is denied.

I. BACKGROUND

Adcom’s wire cleaning process generates two separate wastewater
effluents: spent pickle liquor and rinse water. First, coils of wire
are dipped in tubs of concentrated sulfuric acid to remove scale and
rust. When several batches have been cleaned, the used acid (spent
pickle liquor) is discharged from the tubs. After the coils have been
dipped in sulfuric acid, they are rinsed with water in different tubs
to remove residual acid, generating the second effluent, rinse water.

Prior to 1979, Adcom discharged both the spent pickle liquor
and the rinse water into a rubber-lined surface impoundment.
Wastewaters in the rubber-lined surface impoundment were then
treated at an on-site water treatment plant and discharged to an
unlined surface impoundment, which in turn discharged into a ditch
in accordance with Adcom’s NPDES permit. The wastewater treat-
ment plant produced a non-hazardous sludge from the treatment
of the rinse waters, which was disposed of at a landfill.

In December of 1979, Adcom installed a Crown Acid Recovery
System, which stored and recycled all spent pickle liquor from the
pickling tub. With the installation of the system, Adcom ceased all

1The non-HSWA portion of the permit was issued by the State of Florida, 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. 13, 1992).

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ADCOM WIRE, D/B/A/ ADCOM WIRE COMPANY 223

discharges of spent pickle liquor to the former rubber-lined surface
impoundment. The parties now agree that, because Adcom began
using the Crown Acid Recovery System before November 19, 1980
(when the RCRA regulations became effective), the spent pickle liquor
waste stream never became subject to regulation under RCRA.

From December of 1979 until February of 1982, Adcom continued
to treat the rinse water (separate from the spent pickle liquor
wastes), and to discharge the treated water into the unlined surface
impoundment. The parties disagree over whether Adcom also contin-
ued to hold the untreated rinse water in the rubber-lined surface
impoundment. Adcom takes the position that, after December of 1979,
the rinse water was discharged directly into a treatment tank and
that, therefore, the rubber-lined surface impoundment did not hold
hazardous waste that could subject it to RCRA. The Region maintains
that Adcom continued to store the rinse water in the rubber-lined
surface impoundment before treatment and that, accordingly, the im-
poundment did become subject to RCRA. See 40 CFR §264.1(b)
(RCRA regulations apply to owners or operators who store hazardous
waste). The parties do agree that, sometime around February of 1982,
Adcom modified its rinse water system to reclaim rinse waters, using
a closed loop recovery system that eliminated all discharges to the
surface impoundments.

On September 12, 1988, the Florida Department of Environ-
mental Regulation issued a RCRA closure permit to Adcom to close
the two surface impoundments (rubber-lined and unlined) discussed
above. On November 27, 1991, the Region issued the HSWA portion
of the permit now being challenged by Adcom. This appeal followed.

II. DISCUSSION

Under the rules that govern this proceeding, a RCRA permit
ordinarily will not be reviewed unless it is based on a clearly erro-
neous finding of fact or conclusion of law, or involves an important
matter of policy or exercise of discretion that warrants review. See
40 CFR § 124.19; 45 Fed. Reg. 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 deter-
mined at the Regional level * * *.” Id. The burden of demonstrating
that review is warranted is on the petitioner.

In its appeal of the HSWA permit, Adcom first argues that,

for several reasons, a HSWA permit may not be issued to it. Adcom
then argues that, if the Region does have authority to issue a HSWA

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224 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

permit, the permit should reflect certain “technical comments” that
Adcom submitted to EPA during the comment period on the draft
permit. The issues raised by the appeal are addressed below.

A. Treatment, Storage, or Disposal of Hazardous Waste

Adcom argues that the Region does not have authority to issue
a corrective action permit for releases from the rubber-lined surface
impoundment because Adcom never treated, stored, or disposed of
hazardous waste in the impoundment on or after November 19, 1980,
when the RCRA regulations went into effect.2 The Region now agrees
that the spent pickle liquor never became subject to regulation under
RCRA (see Region’s Response to Petition for Review, at 7), so the
resolution of this issue turns on whether Adcom’s second effluent,
rinse water, was a hazardous waste stored in the rubber-lined surface
impoundment. Adcom’s argument, however, focuses almost exclusively
on spent pickle liquor and summarily argues that its handling of
the rinse water did not trigger RCRA jurisdiction.4

The Region responds that, on and after November 19, 1980, the
rinse water had the hazardous waste characteristic of corrosivity
and was stored in the rubber-lined surface impoundment before it
was treated. The Region cites a February 24, 1981 submission to
the Region, in which Adcom (through its affiliate, Leggett & Platt,
Inc.) stated that the rinse water generated at the Adcom facility
had a pH of 2. Petition for Review, Exhibit 5. The Region also cites
40 CFR §261.22(a)(1), which provides that a solid waste that is
aqueous and has pH less than or equal to 2 exhibits the hazardous
waste characteristic of corrosivity. The Region concludes, therefore,
that the rinse water was a characteristic hazardous waste.5 The
Region also argues that, between November 19, 1980 and February
of 1982, Adcom held rinse water in the rubber-lined surface impound-
ment before treating the rinse water in the wastewater treatment
tank. In support of its position, the Region cites a groundwater mon-
itoring plan, dated November 21, 1983, submitted to EPA by Environ-
mental Science and Engineering, Inc. (ESE), Adcom’s consultant. Re-
gion’s Response to Petition for Review, Exhibit 7. ESE’s plan states
that the rubber-lined surface impoundment was used to hold rinse
water until February of 1982. The Region also cites the closure plan

3 See 45 Fed. Reg. 33,068 (May 19, 1980).

4The petition for review states that after November 19, 1980, the rinse water
was discharged directly into the wastewater treatment tank, where it was rendered
non-hazardous. Petition for Review, at 4.

5 Adcom does not dispute in its petition for review that its rinse water had a
pH of 2 during the relevant period.

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ADCOM WIRE, D/B/A/ ADCOM WIRE COMPANY 225

submitted by ESE to FDER for Adcom’s rubber-lined surface im-
poundment. Region’s Response to Petition for Review, Exhibit 8. That
plan also states that the rubber-lined surface impoundment was used
for holding rinse water until February of 1982. On the basis of these
documents, the Region concludes that the rinse water did become
subject to regulation under RCRA since the rinse water, a hazardous

waste, was stored in a surface impoundment on or after November
19, 1980.6

The record contains two flow diagrams that bear on whether
the rubber-lined surface impoundment was used to hold rinse water
on or after November 19, 1980. Region’s Response to Petition for
Review, Exhibits 12 & 13. Exhibit 12 is a flow diagram of the facility,
prepared by Adcom, which purports to show the movement of
wastewater through the facility during the period between December
1979 and January 1981. The arrows on the diagram indicate that
rinse water from the facility moved directly from the rinsing tubs
to the wastewater treatment tank without first being held in the
rubber-lined surface impoundment. Adcom cites this flow diagram
in support of its assertion that, on and after November 19, 1980,
the rinse water was discharged directly into the wastewater treat-
ment tank. Exhibit 13, also a flow diagram prepared by Adcom,
purports to show the movement of the wastewaters generated at
the facility between January 1981 and February 1982. The arrows
on this diagram also indicate that rinse water moved directly from
the rinsing tubs to the wastewater treatment tank, without first
being held in the rubber-lined surface impoundment.

The Region responds that there are “circumstances surrounding
these exhibits that substantially diminish their accuracy.” Region’s
Response to Petition for Review, at 14. First, the Region points out
that both exhibits are undated and were not included in EPA’s or
FDER’s administrative record until Adcom filed its comments to the
draft HSWA portion of the permit. The Region speculates that the
exhibits “were probably developed during Adcom’s comments to the
draft permit and in support of the permit appeal that Adcom was
contemplating to file.” Id. at 14-15.

SThe Region concludes that untreated rinse water placed in the rubber-lined
surface impoundment after December 1979 must have been released to the environ-
ment because Adcom itself admitted that there was a hole in the rubber liner (Region’s
Response to Petition for Review, Exhibit 10) and because one of the substances found
near the surface impoundment, KO62 (spent pickle liquor), indicates that the hole
must have formed before December of 1979, the last time KO62 was placed in the
rubber-lined surface impoundment. See Petition for Review, at 6.

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226 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The record also contains two affidavits containing the testimony
of two former Adcom employees. Region’s Response to the Petition
for Review, Exhibits 15 & 16. In the affidavits, the former employees
state that the process description in the ESE closure plan relied
on by the Region is incorrect and that the rubber-lined surface im-
poundment was taken out of service between December 1979 and
July 1980. The Region responds that the two affidavits should be
disregarded because their focus is on spent pickle liquor and not
on the rinse water. The Region also points out that the two employees
were testifying about events that occurred roughly ten years ago
and may have had only dim recollections of such events.

After thoroughly considering the record, we have come to the
following conclusions on the issue of whether the rinse water was
subject to regulation under RCRA. First, the Region was not clearly
erroneous in determining that the rinse water was a hazardous
waste. Adcom itself stated that the pH of the rinse water was 2,
establishing that the rinse water had the characteristic of corrosivity.
See 40 CFR § 261.22(a)(1). Second, while the evidence is conflicting
and the issue is certainly not free from doubt, we conclude that
the Region was not clearly erroneous in its determination that be-
tween November 19, 1980 and February of 1982, rinse water was
held in the rubber-lined impoundment before being treated in the
treatment tank. We do not believe that the Region was unreasonable
in placing more credence in the ESE groundwater monitoring plan
and the ESE closure plan, which were prepared in 1983 and 1984
respectively, than it placed in the affidavits, which were prepared
in 1991 for the purpose of challenging the permit and the undated
flow diagrams. Accordingly, review of this issue is denied.

B. Defects in, and Expiration of, State Permit

Adcom argues that the Florida Department of Environmental
Regulation issued the permit with full knowledge that a complete
application had not been submitted. Adcom asserts that FDER ad-
vised EPA that “application deficiencies will be addressed through
permit conditions.” It contends that, because the application was defi-
cient, the State-issued portion of the permit is invalid. The Region
responds that under State law, Adcom had an opportunity to contest
the permit after it was issued but did not take advantage of the
opportunity. The Region argues that a challenge to the validity of
the State portion of the permit on the ground that the application
was defective is now time-barred.

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ADCOM WIRE, D/B/A/ ADCOM WIRE COMPANY 227

We need not reach the issue of whether Adcom’s argument is
now time-barred under State law, for the argument must fail for
a more fundamental reason: whether the permit application submit-
ted to the State of Florida is defective is an issue that relates solely
to the State-issued portion of the permit and is therefore not subject
to federal administrative review. See RCRA §3006(b), 42 U.S.C.A.
§6926(b) (authorized State program operates “in lieu of” federal pro-
gram); 40 CFR § 124.19(a) (limiting federal administrative review of
RCRA permit decisions to those issued under § 124.15 by U.S. EPA
Regions); BP Oil Company, RCRA Appeal No. 89-13, at 1-2 (July
25, 1989) (issues relating to State-issued portion of the permit are
not subject to federal administrative review under 40 CFR § 124.19);
Vulcan Materials Company, RCRA Appeal No. 87-1, at 1-2 (Septem-
ber 8, 1988)(same). Adcom in this proceeding cannot obtain review
of the State-issued portion of the permit. Moreover, to the extent
Adcom is suggesting that a valid State permit is a prerequisite to
holding a corrective action permit, it is in error. Regardless of the
validity of the State portion of the permit, the HSWA portion of
the permit remains in effect. Adcom’s permit provides by its terms
that “if any provision of this permit * * * is held invalid, * * *
the remainder of this permit shall not be affected thereby.” Region’s
Response to Petition for Review, Exhibit 1, Severability Clause, at
4, Adcom has not questioned this provision. Further, the regulations
governing State-issued RCRA permits expressly recognize that where,
as here, the State does not have HSWA authority, it is EPA’s obliga-
tion to issue the portion of the permit necessary to implement HSWA.
See 40 CFR § 271.134(f). EPA’s HSWA authority is wholly independ-
ent of a delegated State’s authority. Therefore, arguments concerning
the validity of the State permit or portion of the permit are irrelevant
to the validity of EPA’s HSWA permit. Accordingly, review of this
issue is denied.

For the same reason, we are also denying review of Adcom’s
argument that the State-issued permit has expired. Adcom argues
that the closure permit expired on November 11, 1991, and that
the corrective action provisions of RCRA are not applicable since
Adcom does not have a valid “base” permit. The Region responds
that the State’s portion of the permit did not expire on November
11, 1991, because Adcom submitted a petition for renewal of the
permit on August 22, 1991, that is, prior to the November 11, 1991
expiration date of the closure permit. See Rule 17-4.080(3) of the
Florida Administrative Code (if permittee requests extension of per-
mit before expiration of permit, the permit will remain in effect
until final agency action is taken on the request). We are of the

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228 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

view, however, that whether the State-issued portion of the permit
has expired is an issue that relates solely to the State-issued portion
of the permit and is therefore not subject to federal administrative
review. Similarly, the validity of the State portion of the permit
has no bearing on Adcom’s HSWA obligations. See discussion in pre-
ceding paragraph supra. Accordingly, review of this issue is also
denied.

C. Adcom’s Technical Comments

Adcom argues that, if the Region has authority to issue the
HSWA permit, the permit should be changed to reflect certain “tech-
nical comments” that Adcom submitted to EPA during the comment
period on the draft permit. The petition for review does not repeat
the technical comments but merely incorporates by reference a letter
sent to EPA during the comment period. Petition for Review, Exhibit

62. In its response to the petition, the Region does not respond
    to Adcom’s technical comments individually, but makes instead the
    general argument that Adcom has not identified any clearly erroneous
    findings of fact or conclusions of law or exercises of discretion that
    should be reviewed.”

We agree with the Region. Under 40 CFR § 124.19, which governs
RCRA permit appeals, a petitioner is required to include in the peti-
tion for review:

{A] statement of the reasons supporting that review,
including * * * a showing that the condition in ques-
tion is based on:

(1) A finding of fact or conclusion of law which is
clearly erroneous, or

(2) An exercise of discretion or an important policy
consideration which the Environmental Appeals
Board should, it its discretion, review.

To satisfy the requirements of 40 CFR § 124.19(a), it is not enough
for Adcom to include in its petition for review a mere reference
to comments made during the comment period on the draft permit.
Cf. City of Los Angeles, Department of Public Works (Hyperion Water
Pollution Control Plant), NPDES Permit No. CA0109991 (JO, August

7The Region also incorporates by reference its responses to Adcom’s technical
comments, which the Region issued along with the final permit. (Region’s Exhibit
28.)

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ADCOM WIRE, D/B/A/ ADCOM WIRE COMPANY 229

29, 1983) (in appeal of denial of evidentiary hearing request, mere
incorporation of hearing request in petition for review, without state-
ment of “supporting reasons” as required by Section 124.91(a)(1),
is not sufficient to demonstrate clear error or important policy consid-
eration). If Adcom wishes to appeal issues raised during the comment
period, it must not only identify the issues in the petition for review,
but also show why the Region’s responses to the issues are clearly
erroneous or involve important policy considerations or exercises of
discretion that should be reviewed. Because Adcom did not meet
the requirements of 40 CFR § 124.19, review of the technical issues
raised in Adcom’s comments on the draft permit is denied.

Il. CONCLUSION

For all the foregoing reasons, we conclude that: (1) the Region
was not clearly erroneous in its determination that the rinse water
generated by Adcom’s facility was a hazardous waste subject to regu-
lation under RCRA; (2) whether the State-issued portion of the permit
is defective or has expired are issues that relate solely to the State-
issued permit and are not subject to federal administrative review
or relevant to the validity of the EPA-issued HSWA portion of the
permit; and (3) Adcom’s incorporation by reference of certain “tech-
nical comments” that Adcom made during the comment period on
the draft permit does not meet the requirements of 40 CFR
§ 124.19(a). Review of Adcom’s petition is therefore denied.

So ordered.

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