Pollution Control Industries of Indiana, Inc.

Plain-English summary

Pollution Control Industries of Indiana operated a hazardous-waste fuel blending and storage facility in East Chicago, Indiana. Its RCRA permit required testing incoming waste streams using the Toxicity Characteristic Leaching Procedure. The company argued that the testing was unnecessary and was not required at similar facilities, but its comments had addressed only who should perform the testing and when total-metals results could avoid it. The Environmental Appeals Board held that the broader challenge was not preserved during the public-comment period and that the region had adequately addressed the narrower objections. It denied review.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.10, 124.13, 124.19, 262.11, 262.20, 264.13, and 268.7; 42 U.S.C. § 6901.
• Outcome: Review of the TCLP testing condition was denied.
• Key point: A permit petitioner must raise all reasonably ascertainable objections and supporting arguments during the public-comment period.

Full text (EPA EAB public release)

162 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF POLLUTION CONTROL
INDUSTRIES OF INDIANA, INC.
RCRA Appeal No. 92-3
ORDER DENYING REVIEW
Decided August 5, 1992
Syllabus

Petitioner Pollution Control Industries of Indiana (“PCII”) appeals a condition
of a hazardous waste management permit issued to it by the Environmental Protection
Agency’s Region V for its East Chicago, Indiana facility. The challenged condition
requires the testing of certain incoming waste streams using the Toxicity Characteristic
Leaching Procedure (“TCLP”). PCII asserts that TCLP testing is not required by
applicable regulations, will not provide additional useful information, and is not being
required of similar facilities in its area. Region V responds that the TCLP testing
requirement is appropriate and permissible under applicable regulations and that
PCII cannot appeal this condition because it did not raise the issue during the com-
ment period on the draft permit.

Held: PCII’s comments on the draft permit related only to two specific aspects
of the TCLP testing procedure. The Region’s response to those two concerns was
appropriate. PCII did not make a broad-based challenge to the TCLP testing require-
ment, although it could have done so since the issue was reasonably ascertainable
at the time. Therefore, it failed to comply with the procedural requirements for preserv-
ing this broader challenge for appeal and, accordingly, review is denied.

Before Environmental Appeals Judges Ronald L. McCallum
and Edward E. Reich. Environmental Appeals Judge Nancy
B. Firestone did not participate in this Decision.

Opinion of the Board by Judge Reich:

Petitioner Pollution Control Industries of Indiana (“PCII”) is ap-
pealing certain terms of a permit issued to it pursuant to the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 (“RCRA”) and the Hazardous and Solid Waste
Amendments of 1984 (“HSWA”), 42 U.S.C. §6901 et seq., and regula-
tions promulgated thereunder. This permit was issued by the U.S.
Environmental Protection Agency’s Region V on December 31, 1991,
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POLLUTION CONTROL INDUSTRIES OF INDIANA, INC. 163
to PCII for its facility in East Chicago, Indiana. PCII has appealed
the permit in accordance with 40 CFR § 124.19 (1991).

PCII operates a hazardous waste fuel blending and storage facil-
ity in East Chicago, Indiana. The facility accepts hazardous waste
and produces a fuel for combustion at facilities located off-site. The
permit at issue here would allow PCII to continue to store hazardous
waste in tanks and containers at the facility. A final hazardous waste
management permit was issued jointly by Region V and the State
(Indiana Department of Environmental Management) and consists
of a final Federal permit and a final State permit. The Federal
permit covers those provisions of HSWA for which the State has
not yet been authorized.

Petitioner submitted a Petition for Review of Condition in RCRA
Final Permit on January 31, 1992 (“Petition”). The Petition relates
only to the Federal permit. Authority to resolve such appeals on
behalf of the Agency has been delegated by the EPA Administrator
to this Board in 40 CFR § 124.19, 50 Fed. Reg. 5335 (February 13,
1992).

PCII’s Petition focuses on one particular aspect of the permit,
relating to its obligation to test incoming waste streams. As stated
in the Petition:

Discussions with the Indiana Section of the RCRA

Permitting Branch of USEPA Region 5 have con-

firmed that the intent of certain conditions added

to the Permit by USEPA is to require that the Tox-

icity Characteristic Leaching Procedure (“TCLP”) test

be performed on each waste stream (as defined in

Section C of Attachment I to the Permit (the “Waste

Analysis Plan”)) to be received by PCII as input to

its operation. According to USEPA, such TCLP test-

ing is to be performed irrespective of any informa-

tion, certification or waste determination (pursuant

to 40 CFR § 262.11) which PCII may have obtained

or be able to obtain from the Generator.
Petition at 1. PCII also argues that TCLP testing is not required
by applicable regulations, would provide no new information required
for safe storage of the incoming wastes, and has not been required
of similar facilities in the area.

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164 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The Region filed a response to the Petition! with the Board
on April 24, 1992. The Response not only challenges the bases set
forth for review in the Petition but also contends that Petitioner
has failed to satisfy the procedural requirements for review, and
thus the Petition should be denied on that basis.

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 the Federal Register notice in which Section 124.19 was promul-
gated 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.

The procedures for the issuance of a RCRA permit are found
in 40 CFR Part 124. Two important provisions of Part 124 relate
to the obligation of persons to raise their objections to a permit
prior to an appeal. 40 CFR § 124.13 provides in part:

All persons, including applicants, who believe any
condition of a draft permit is inappropriate * * *
must raise all reasonably ascertainable issues and
submit all reasonably available arguments support-
ing their position by the close of the public comment
period (including any public hearing) under § 124.10.
In addition, 40 CFR § 124.19 provides in part:
[A]ny person who filed comments on that draft per-
mit or participated in the public hearing may petition
the Administrator to review any condition of the per-
mit decision. Any person who failed to file comments
or failed to participate in the public hearing on the
draft permit may petition for administrative review
only to the extent of the changes from the draft
to the final permit decision * * . The petition shall
include a statement of the reasons supporting that
review, including a demonstration that any issues
being raised were raised during the public comment
1Response of the United States Environmental Protection Agency to Petitioner's
Request for Review of Condition in RCRA Final Permit (“Response”).
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POLLUTION CONTROL INDUSTRIES OF INDIANA, INC. 165
period (including any public hearing) to the extent
required by these regulations * * .

Adherence to these requirements is necessary to ensure that the
Region has an opportunity to address potential problems with the
draft permit before the permit becomes final.2 Therefore, a threshold
analysis is required to determine whether Petitioner complied with
§§ 124.13 and 124.19 and thus is entitled to raise this challenge
on appeal. As noted, Region V contends that it did not.

In light of the Region’s contentions, it is necessary to determine
whether the issue raised on appeal was previously raised during
the comment period. On appeal, PCII has objected to the requirement
for TCLP testing on each waste stream.3 The Petition is somewhat
confusing on the precise scope of the objection, however. The excerpt
from the Petition previously quoted focuses on the obligation to test
in circumstances where data are provided by a generator. This could
be read as merely requesting relief from the obligation to test a
waste stream if the generator has already supplied the requisite
data. However, the supporting arguments in the Petition and the
relief requested suggest that PCII’s objection is broader than this
one situation. Its arguments against the TCLP requirement relate
to its overall appropriateness as applied to PCII’s facility. The specific
relief requested is to “[mlodify or delete such conditions so as to
remove from the Permit any requirements that TCLP analytical data
be obtained for acceptance of incoming waste streams.” Petition at

4. Thus, we will interpret the Petition to be a broad objection to
   the obligation to conduct TCLP testing, which includes but is not
   limited to the situation where the generator provides waste analysis
   data.

Next, we must address what comments are in the administrative
record for purposes of determining compliance with the requirements
of 40 CFR § 124.13. It is uncontroverted that PCII provided written
comments on the draft permit dated July 29, 1991.4 PCII did not
testify at the public hearing on the draft permit. PCII, in a Reply

2See In re Shell Oil Company, RCRA Appeal No. 88-48, at 3 (March 12, 1990)
(“These rules help to ensure that the Region has an opportunity to address any
concerns raised by the permit, thereby promoting the Agency’s longstanding policy
that most permit issues be resolved at the Regional level.”).

The Toxicity Characteristic Leaching Procedure is found at 40 CFR Part 261,
Appendix II. It is designed to determine the mobility of organic and inorganic analytes
in liquid, solid, and multiphasic wastes.

4Letter from Tita Lagrimas, Director of Regulatory Affairs, PCII, to Joseph
DiMatteo, RCRA Permitting Branch, Region V, USEPA.

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166 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Memorandum to the Region’s Response,5 asserts that it raised the
objections to TCLP testing which it now attempts to raise on appeal
during the comment period not only through its written comments
but also “in several meetings and conference calls with EPA prior
to the end of the public comment period * * *.” PCII Reply at 2.
During those meetings and conference calls, according to PCII, “PCII
expressly questioned the regulatory basis for PCII to obtain TCLP
testing of its incoming waste streams (regardless of the party respon-
sible for such testing), and the appropriateness of the TCLP testing
requirement for PCII’s particular operations.” Id.

Region V has requested leave to file a document entitled “Supple-
mental Response of the United States Environmental Protection
Agency to Petitioner's Request for Review of Condition in RCRA
Final Permit” (“Supplemental Response”). Leave to file this document
is hereby granted. In the Supplemental Response, the Region denies
that it participated in any meetings with PCII during the comment
period. It acknowledges that the permit writer spoke with PCII on
at least one occasion but denies that it was in regard to the subject
of PCII’s Petition. Supplemental Response at 2.

There is nothing in the administrative record relating to the
telephone calls or alleged meetings between PCII and Region V dur-
ing the comment period. We have only PCII’s unsubstantiated, and
contested, allegations that the issues were the same as in the Peti-
tion. This is not sufficient. To assure an adequate administrative
record on appeal, PCII should have made sure that its written com-
ments raised all of the issues of concern. To ascertain in contested
cases whether the issue raised on appeal was properly preserved
for review, we will look only to the written comments which the
petitioner filed on the draft permit.

It is uncontested that some of PCII’s comments on the draft
permit related to the TCLP testing procedure. The more difficult
question is whether the particular objections to the testing require-
ment as raised on appeal were raised in PCII’s comments. We find
that they were not.

PCII’s comments on the requirement for TCLP testing were fo-
cused on two particular aspects of the testing requirement. The first
was that PCII not be required to conduct the TCLP testing but
that TCLP testing be conducted by the generator of the waste in-

5 Reply Memorandum of Pollution Control Industries of Indiana in Support of
its Petition for Review of Condition in RCRA Final Permit (“PCII Reply”).
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POLLUTION CONTROL INDUSTRIES OF INDIANA, INC. 167
stead.6 The requirements for general waste analysis by the owner
or operator of a treatment, storage, or disposal facility provide for
the possibility of generator-supplied data.7 The Region, in its Re-
sponse to Comments, agreed to add the following clarifying language
to certain requirements of the permit: “Analytical data that is not
submitted by the Generator must be obtained by PCII in accordance
with 329 IAC 3-41-4 and 40 CFR 264.13.”8 Thus, rather than di-
rectly shifting the testing burden to the generator as PCII would
have preferred, the Region made clear that PCII as the permittee
had the burden of analyzing the waste except to the extent that
the generator had already adequately done so. This language accu-
rately reflects the structure of 40 CFR §264.13(a)(2), which allows
for generator-supplied data but puts the burden for waste analysis
on the facility owner or operator if generator-supplied data are not
provided.

The Petition for Review contains a number of arguments against
TCLP testing, none of which were raised in PCII’s comments on
the draft permit. In fact, PCII’s comments on the draft permit con-

6Comments numbered 6, 10, 14, 16, 19, and 20. The particular language suggested
by PCII to be added as a footnote to the TCLP testing requirement reads: “Will
be obtained by the Generator or by an outside laboratory retained by the Generator
in accordance with 329 IAC 3-41-4, CFR 264.18, and 262.20.” However, comments
6, 10, 14, and 16 refer back to comment number 2. In that comment, PCII seemed
to recognize that it is ultimately responsible for providing the waste analysis data
since it suggested adding to the narrative on the waste analysis plan the following
language:

In accordance with 329 IAC 341-4, CFR 264.13, CFR 262.20,

required waste stream data which is not provided by the Genera-

tor will be obtained by PCII, by an outside laboratory retained

by PCII, or by an outside laboratory retained by the Generator.
These provisions seem inconsistent on what obligation PCII would have if the generator
does not provide the data but there is no explanation for this seeming inconsistency.

740 CFR § 264.13(a)(2) provides in part:

The owner or operator of an off-site facility may arrange for the
generator of the hazardous waste to supply part of the information
required by paragraph (a)(1) of this section, except as othewise
[sic] specified in 40 CFR 268.7 (b) and (c). If the generator does
not supply the information, and the owner or operator chooses
to accept a hazardous waste, the owner or operator is responsible
for obtaining the information required to comply with this section.
5 Response to Comments on the Draft Federal Permit for Pollution Control Indus-
tries of Indiana comments and responses number 1, 4, 6, 7, and 8.
10 We recognize that PCII’s Petition states that TCLP testing will be required
of PCII irrespective of any testing which the generator may have done. PCII indicates
that it has confirmed this interpretation of the permit with Region V. However, as
we read the permit, TCLP testing would not be required of PCII if a generator
provided all of the data which TCLP testing would yield.
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168 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
tained no explanation of the reasons for its suggested changes or
arguments supporting why the changes were appropriate. Thus, PCII
failed to satisfy its obligation to provide all reasonably available argu-
ments supporting its position during the comment period.

Since, as previously noted, it is possible to construe PCII as
objecting to the requirement that PCII do TCLP testing under any
circumstances, it is necessary for us to determine whether its com-
ments concerning generator testing were intended to convey a whole-
sale rejection of the appropriateness of TCLP testing by PCII in
all circumstances, thus preserving this issue for review. We do not
read its comments in that manner. The particular language PCII
suggested adding to the permit, quoted in note 6 supra, refers to
data being obtained by the generator in accordance with § 264.13.1°
This reference can only be to the language about the owner or opera-
tor arranging for the generator to supply part of the data required
since that it is the only place in that section that the generator
is mentioned. The reference in the same quoted language to § 262.20
is simply to the manifesting requirement which applies to the genera-
tor when waste is being transported off-site. This relates to the trans-
fer of information about the waste from the generator to the receiving
facility. There is no reference in the comments, as there is in the
Petition, to 40 CFR § 262.11, the section on hazardous waste analysis
by a generator. Therefore, in context, we read PCII’s comments as
merely expressing a desire to shift the burden for TCLP testing
under the permit to the generators rather than challenging whether
TCLP testing was appropriate at all.11

Further support for this reading comes from the following lan-
guage suggested by PCII in its comment number 20 dealing with
annual waste stream evaluations:

In order to show proper characterization of each
Waste Stream, the Toxicity characteristic leaching
procedure (TCLP) test will be conducted if the Gener-
ator cannot or will not certify that the Waste Profile
or process generating the waste has not changed.
When a Waste Stream is tested for and passes the
TCLP test (is not characteristically toxic), then the
EP-Toxicity test may be required.
10 See note 7, supra.
11It is instructive that PCII’s comments did not simply suggest deletion of the
TCLP requirement, as they have in the Petition. Deletion, rather than shifting the
burden, would seem more consistent with an objection to the TCLP testing as not
being rationally required for PCII’s facility.
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POLLUTION CONTROL INDUSTRIES OF INDIANA, INC. 169
This language, suggested by PCII, clearly contemplates that TCLP
testing would be conducted absent generator certification. This is
wholly inconsistent with the outright rejection of TCLP testing PCII
now asserts.

The other focus of PCII’s comments was that the requirement
for TCLP testing be contingent on the results of the total metals
analysis. If the total metals analysis indicated that the metals content
of a waste stream was below certain minima, TCLP testing would
not be required.12 The Region, in its Response to Comments, indi-
cated that the TCLP contains provisions that would obviate the need
for use of TCLP if a total analysis of the wastes demonstrates that
individual analytes are below appropriate regulatory levels for the
particular toxicity characteristic waste being analyzed. Because the
Region determined that the TCLP procedure itself contained the flexi-
bility PCII requested, it made no change to the permit.15

PCII’s comments on the draft permit thus contain no broad chal-
lenge to the regulatory basis or appropriateness of TCLP testing
as applied to its facility. To the extent that its Petition makes a
broader challenge, it contravenes the requirements of 40 CFR
§§ 124.13 and 124.19 to have raised this challenge before the close
of the comment period on the draft permit. These broader issues
were certainly reasonably ascertainable during the comment period
and did not arise from changes from the draft to the final permit.
To the extent that the Petition reiterates the two specific issues
raised during the comment period, we find that the change made
to provide for generator-supplied data and the explanation of why
no change was required to accommodate a total metals analysis were
fully responsive to PCII’s concerns. For all of the foregoing reasons,
the Petition for Review is denied.

So ordered.
12 Comments number 8B and 12B.

13 Response to Comments, comments and responses number 3 and 5. See 40 CFR
Part 261, Appendix II, Section 1.2.

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