Austin Powder Company

Plain-English summary

Austin Powder Company operated an explosive manufacturing facility near McArthur, Ohio, under a permit covering hazardous-waste management and corrective action at solid waste management units. Austin challenged the permit's flexibility for site-specific investigation workplans, the absence of action levels that could end further corrective action without a permit modification, and the requirement to investigate four listed units. The Environmental Appeals Board adopted the Region's interpretation that the permit allowed site-specific omissions or deviations from the standard work scope, and it denied review of the four-unit investigation issue because Austin did not show why the Region's response was erroneous. The Board remanded the action-level issue for the Region to clarify its rationale or add appropriate action levels.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.19 and 270.42; 42 U.S.C. §§ 6924, 6926, 6901, and 6992k.
• Outcome: Review was denied on most issues, and the permit was remanded on the action-level issue.
• Key point: A permit's action levels must be explained or included when the Region's rationale for omitting them is unclear.

Full text (EPA EAB public release)

AUSTIN POWDER COMPANY 713

IN RE AUSTIN POWDER COMPANY

RCRA Appeal No. 95-9

ORDER DENYING REVIEW IN PART
AND REMANDING IN PART

Decided January 6, 1997

Syllabus

Austin Powder Company (“Austin”) has filed a petition seeking review of the federal por-
tion of a permit issued by U.S. EPA Region V, under the 1984 Hazardous and Solid Waste
Amendments to the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C.A. §§
6901-6992k. Austin raises the following three issues which are addressed in this decision: 1)
whether the permit provides sufficient flexibility to allow Austin to take site-specific considera-
tions into account in preparing the RCRA Facility Investigation Workplan or the Corrective
Measure Study Workplan; 2) whether the Region erred in failing to include “action levels” in the
permit that can be used to determine, without the necessity of obtaining a permit modification,
that no further corrective action is required with respect to a particular solid waste management
unit (“SWMU”); and 3) whether the Region erred in requiring further investigation at four of the
SWMUs listed in the permit (SWMUs 9-12).

Held: On the issue of whether the permit provides the permittee with sufficient flexibili-
ty, the Region has interpreted the permit as allowing the permittee the opportunity to demon-
strate the need for omissions or deviations from the Scope of Work included as Attachment I to
the permit in light of site-specific circumstances. The Board adopts this interpretation as an
authoritative reading of the permit that is binding on the Agency. Austin’s objections in this
regard are therefore moot. On the issue of whether the permit should contain action levels to
determine whether further corrective action is required without the need for a permit modifica-
tion, the permit is remanded and the Region is ordered to either clarify its basis for not includ-
ing action levels or revise the permit to include appropriate action levels. Finally, review is
denied on the issue of whether the Region erroneously listed SWMUs 9-12 as requiring further
investigation because Austin’s petition fails to state why the Region’s response to a virtually iden-
tical comment on this issue was clearly erroneous or otherwise warrants review.

Before Environmental Appeals Judges Ronald L. McCallum,
Edward E. Reich and Kathie A. Stein.

Opinion of the Board by Judge Reich:

I. BACKGROUND

Austin Powder Company (“Austin”) has filed a Petition for Review
of Permit (“Petition”), dated October 31, 1995, seeking review of the

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714 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

federal portion of a permit issued by U.S. EPA Region V, under the
1984 Hazardous and Solid Waste Amendments ((HSWA") to. the
Resource Conservation and Recovery Act of 1976 (“RCRA”), 42
U.S.C.A. §§ 6901-6992k.' As requested by the Environmental Appeals
Board, the Region filed a response dated December 14, 1995, to
Austin’s petition for review (“Region’s Response”).

Austin operates an explosive manufacturing facility near McArthur,
Ohio. The permit authorizes certain hazardous waste management
activities and requires corrective action at certain solid waste manage-
ment units (“SWMUs”) identified at the facility.2 The Region issued a
draft permit on January 24, 1995, and Austin submitted written com-
ments on March 21, 1995. Comments of Austin Powder Company on
Draft RCRA Permit (“Comments”) (Exh. B to Petition). No other party
commented on the draft permit. The Region issued the final permit
along with a response to Austin’s comments on September 29, 1995.

In its petition for review, Austin raises the following three issues
which we address in this decision: 1) the permit does not provide suf-
ficient flexibility to allow Austin to take site-specific considerations
into account in preparing the RCRA Facility Investigation (“RFI”)
Workplan or the Corrective Measure Study (“CMS”) Workplan.’

' The non-HSWA portion of the permit was issued by the State of Ohio, an authorized State
under RCRA § 3006(b), 42 U.S.C. § 6926(b).

• Under RCRA § 3004(u), 42 U.S.C. § 6924(u), permits issued after November 8, 1984, shall
  require:
  (Clorrective action for all releases of hazardous waste or con-
  stituents from any solid waste management unit at a treat-
  ment, storage, or disposal facility seeking a permit under this
  subchapter * * *,

Although neither the statute nor the regulations define a SWMU, the Board has upheld the fol-
lowing definition:

[Alny discernable unit at which solid wastes have been
placed at any time, irrespective of whether the unit was
intended for the management of solid or hazardous waste.
Such units include any area at a facility at which solid wastes
have been routinely and systematically released.

In re General Motors Corp., Delco Moraine Division, 4 E.A.D. 334, 336 (EAB 1992). See also id.
at 337 n.5 (stating that the above definition is consistent with the Agency's proposed Subpart S
rules governing corrective action for SWMUs (55 Fed. Reg. 30,808 July 27, 1990)) and with the
RCRA Facility Assessment Guidance, OSWER Dir. 9502.00-5 at 1-3 (Oct. 9, 1986)). The permit in
the present case identifies 25 SWMUs at the facility and lists 6 as requiring further investigation.

• Generally, corrective action requirements consist of several steps. The first step is usual-
  ly the RCRA Facility Assessment (“RFA”), during which the Agency attempts to identify actual
  and potential releases of hazardous waste or hazardous constituents. If the RFA indicates that

Continued

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AUSTIN POWDER COMPANY 715

Petition at 3-4; 2) the Region erred in failing to include action levels
“which can be applied to determine, without the necessity of obtain-
ing a permit modification, that no further action is required with
respect to a particular SWMU.” Id. at 4; and 3) the Region erred in
requiring corrective action at four of the SWMUs listed in the permit
because there is no evidence that any hazardous wastes or hazardous
constituents were released from these SWMUs. Id. at 6-7.*

II. DISCUSSION
A. Standard of Review

Under the rules governing this proceeding, a RCRA permit ordi-
narily 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. 40 C.F.R. §
124.19; see, e.g., In re Johnston Atoll Chemical Agent Disposal System,
6 E.A.D. 174, 178 (EAB 1995); In re Allied-Signal, Inc., 5 E.A.D. 291,
292 (EAB 1994). The preamble to section 124.19 states that “this
power of review should only be sparingly exercised,” and that “most
permit conditions should be finally determined at the Regional level
***” 45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrat-
ing that review is warranted is on the petitioner. 40 C.F.R. § 124.19(a);
see also Johnston Atoll, 6 E.A.D. at 5, Allied Signal, 5 E.A.D. at 292.

B. Petitioner’s Claims

1. Flexibility

Austin argues that permit conditions HI.F.1. @equirements for
conducting the RFI° and III.F.3. (requirements for conducting the

further investigation is required, the next step is the RFT, during which the permittee assesses
the identified releases by characterizing their nature, extent, and rate of migration, The goal of
the RFI is to provide sufficient data to determine if remedial action is required. Next, if neces-
sary, the permittee conducts a CMS, during which appropriate remedial measures are identified.
The Region then selects the appropriate remedial measures which the permittee must imple-
ment. See In re Amoco Oil Company, 4 E.A.D. 954, 962 n.10 (EAB 1993).

‘The petition has raised four additional concerns pertaining to Permit Conditions 1.D.5.
(Duty to Mitigate), LD.7, (Duty to Provide Information), III.G.2. and III.G.3. (Dispute
Resolution), and V (Schedule of Compliance). In its response to the petition for review, how-
ever, the Region has agreed to modify the disputed permit conditions in the manner sought by
Austin. These conditions are therefore remanded for incorporation of the language proposed by
Region V. Thus, Austin’s request for review with regard to these provisions is denied as moot.

3 Permit condition III.F.1. states, in part:

The Permittee shall conduct an RFI to evaluate thoroughly
the nature and extent of the release of hazardous waste(s)
Continued

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CMS)° are not sufficiently flexible in that they require the permittee to
comply with all elements in the permit’s scope of work (“SOW”) (see
Attachment I to Final permit) even if site-specific factors would justi-
fy omissions or deviations from the SOW. Specifically, Austin states
that the permit:

[Does not explicitly recognize the flexibility needed
in developing a RCRA Facility Investigation Workplan

and a
permit

Corrective Measures Study Workplan. These
conditions imply that the workplan submis-

sions must contain all of the elements and informa-
tion described in the [SOW] attached to the permit as
Attachment I. However, this position is inconsistent
with the Agency's position in other instances where it

allows

a permittee to demonstrate that omissions or

deviations from the SOW may be appropriate in the
Agency’s judgment in light of site-specific circum-
stances.

Petition at 3-4.

In response, the Region contends that the disputed permit provi-
sions provide sufficient flexibility to allow for deviations or omissions
from the SOW in appropriate circumstances. In particular, in its

and hazardous constituent(s) from all applicable SWMUs as
identified from the results of the approved RFI Release
Assessment. The major tasks and required submittal dates are
shown below. Additional tasks and associated submittal dates
may also be specified in the Schedule of Compliance (Permit
Condition VL). The scope of work for each of the tasks is
found in Attachment I (Corrective Action Scope of Work).

° Permit condition III.F.3. states, in part:

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If the Regional Administrator determines, based on the results
of the RFI and other relevant information, that corrective
measures are necessary, the Regional Administrator will noti-
fy the Permittee in writing that the Permittee shall conduct a
CMS. The purpose of the CMS will be to develop and evalu-
ate the corrective action alternative(s) and to outline one or
more alternative corrective measure(s) which will satisfy the
performance objectives specified by the Regional
Administrator. The major tasks and required submittal dates
are shown below. Additional tasks and associated submittal
dates may also be specified in the Schedule of Compliance
(Permit Condition V.). The Scope of Work for each of the
tasks is found in Attachment I.
AUSTIN POWDER COMPANY 717

response to the petition for review, the Region states that upon sub-
mission of the RFI and CMS workplans, the Region will consider any
requests from the permittee for omissions or deviations from the
SOW. Region’s Response at 7-8. Similarly, in its response to comments
on this issue the Region stated:

U.S. EPA understands that omissions or deviations
from the “Corrective Action Scope of Work” are
inevitable because the Corrective Action Scope of
Work is intended to apply to all facilities. All portions
may not apply to all facilities. The Permittee may com-
municate omissions or deviations which it deems per-
tinent to the corrective action activities in writing to
the U.S. EPA project manager.

Response to Comments at 12; see also id. at 8. Thus, the Region
interprets the disputed provisions as allowing the permittee the
opportunity to demonstrate to the Region the need for omissions or
deviations from the SOW in light of site-specific circumstances, and
we adopt this interpretation as an authoritative reading of the per-
mit that is binding on the Agency. See In re Amoco Oil Company, 4
E.A.D. 954, 981 (EAB 1993). Austin’s objections in this regard are
therefore moot.

2. Action Levels

Under permit condition II.F.2.a. (Determination of No Further
Action — Permit Modification), the permittee may request a Class 3
permit modification pursuant to 40 C.F.R. § 270.42 to terminate fur-
ther corrective action requirements under the permit where the
results of the RFI and other relevant information “conclusively
demonstrate that there are no releases of hazardous waste(s), includ-
ing hazardous constituents, from SWMUs at the facility that pose a
threat to human health and the environment.” In its petition for
review, Austin argues that the Region erred in failing to include any
“action levels” in this permit provision (as well as in condition I.A.7.
of the SOW) (Determination of Further Investigation) that can be
used to determine, without the need for a permit modification, that
no further corrective action is required with respect to a particular
SWMU. Petition at 4.

According to Austin, the permit, as currently drafted, is inconsis-
tent with the Board’s holding in In re Environmental Waste Control,
Inc., 5 E.A.D. 264 (EAB 1994). In that case, the Board, relying on the
Agency’s proposed Subpart S rules governing corrective action for

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718 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

SWMUs,’ held that, absent site-specific reasons, permits must include
action levels to determine the need for further corrective action.
Environmental Waste Control, 5 E.A.D. at 286-287 (citing In re
Sandoz Pharmaceuticals Corp., 4 E.A.D. 75, 81-83 (EAB 1992)). The
Board stated that if the Region includes specific action levels in the
permit, “then the Region’s evaluation of the RFI and determination of
whether the action levels have been exceeded for particular media”
will determine whether corrective action will be required with respect
to the particular SWMU involved. Environmental Waste Control, 5
E.A.D. at 287-88. If action levels have not been exceeded, no further
corrective action would be required under the permit, thereby elimi-
nating the need for the permittee to request a permit modification to
delete the requirements for further action. Id. at 288.

In response to the petition for review, the Region states that there
are site-specific reasons for not including action levels in Austin’s per-
mit. In particular, the Region states:

[Austin] has proposed that an action level be set for
each constituent of concern. If the constituent of con-
cern does not exceed its action level for any SWMU,
then it is no longer of concern. The difficulty of this
approach is that the additive or cumulative effect
caused by the presence of multiple constituents of
concern would not be considered. Because [Austin]
has multiple SWMUs with potentially multiple con-
stituents of concern, it is possible that all constituents
of concern could be below any action level, thereby
releasing the unit from further corrective action, when
the combination of all of the constituents of concern
would exceed acceptable risk levels.

” See 55 Fed. Reg. 30,798 July 27, 1990). The preamble to the Subpart S proposal states
that action levels should be specified in the permit when first issued. In particular, the pream-
ble states, in part:

Action levels will, whenever possible, be incorporated in the
permit. The Agency believes it is advantageous to identify
action levels in the permit so that the public and the permit-
tee will know in advance what levels will trigger the require-
ment to conduct a CMS. This approach also minimizes the
need for permit modifications later in the process, which
could delay ultimate cleanup.

55 Fed. Reg. at 30,814. As of this date the Subpart S proposal has not been promulgated in
final form.

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AUSTIN POWDER COMPANY 719

It is because of this site-specific concern that the inclu-
sion of action levels is not appropriate in this permit.

Region’s Response at 6-7. In its response to comments on this issue,
however, the Region did not mention the possible cumulative effects
of multiple constituents as a reason for not including action levels.
This concern was raised for the first time on appeal. The only site-spe-
cific reason for excluding action levels cited in its response to com-
ments was as follows:

Austin Powder has performed analysis on data gath-
ered at certain SWMUs which have been included in its
RFI, but necessary information regarding the precise
location of samples and sampling methodology, labo-
ratory quality assurance, etc., are unavailable to
Region 5 thus preventing Region 5 from determining
the appropriate action levels if that information is to be
considered.

Response to Comments at 11. Thus, because the Region has given two
different reasons for refusing to include action levels in the permit
without explaining how these reasons are related (if at all), we can
not determine with sufficient certainty the actual basis for the Region’s
determination.

Moreover, even assuming that the basis for the Region’s refusal to
include action levels was concern for the potential risks associated
with multiple contaminants, it is not immediately obvious to us why
the Region could not include a permit term requiring further correc-
tive action in the event this concern were to materialize. That is, the
permit could be written so as not to excuse Austin from the obliga-
tion of preparing a CMS or taking other appropriate action if the
Region determines that the risks associated with the presence of mul-
tiple contaminants at the levels detected could present a risk to
human health or the environment even if the action levels for indi-
vidual constituents had not been not exceeded. See RCRA § 3005(c)(3)
(permits “shall contain such terms and conditions as the Administrator
(or the State) determines necessary to protect human health and the
environment.”). In this regard, we note that the preamble to the
Agency’s proposed Subpart § rules states, in part:

The Agency believes it is important to provide the
Regional Administrator authority to require a CMS * **
even when no constituents exceed action levels. For
example, * * * a CMS could be required in situations

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720 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

where the risks posed by the presence of multiple con-
taminants may be high enough to warrant a Corrective
Measure Study even if no single constituent exceeds
the individual action level for the constituent.

55 Fed. Reg. at 30,820.

In any case, because the Region’s two differing explanations
make its rationale for its permit determination on this issue unclear,
the permit is remanded and the Region is ordered to either clarify its
basis for not including action levels in Austin’s permit (and allow
Austin to submit comments on this explanation) or to revise the per-
mit to include appropriate action levels. See In re GSX Services of
South Carolina, Inc., 4 E.A.D. 451, 454 (EAB 1992) (administrative
record must reflect the “considered judgment” necessary to support
the Region’s permit determination).

3. SWMUs 9-12

Austin objects to the inclusion of SWMUs 9-12 on the permit’s list
of SWMUs requiring further investigation.’ See Attachment III to per-
mit (List of SWMUs Requiring Further Investigation). According to
Austin, the Region has no authority under RCRA § 3004(u) to require
corrective action at these SWMUs because the releases from these
SWMUs did not contain hazardous waste or hazardous constituents.
Petition at 6. Specifically, Austin states:

[T]he wastewaters managed at these four SWMUs sole-
ly consisted of water, minute concentrations of PETN,
and formerly ethanol. There was insufficient PETN
present to make the wastewater a reactive hazardous
waste. Based on sample analyses and generator
knowledge, the wastewater did not fail any of the
other hazardous waste characteristics nor is it a listed
hazardous waste. Therefore, there were no releases of
hazardous waste from these SWMUs.

Id. at 6-7.

In response to a virtually identical comment raised during the
comment period, the Region stated:

° These are: PETN Dryer House No. 1 — SWMU No. 9, PETN Dryer House No. 2 — SWMU
No. 10, PETN Dryer House No. 3 — SWMU No. 11, and S-5 PETN Storage — SWMU No. 12.

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AUSTIN POWDER COMPANY 721

U.S. EPA agrees with the commentor that the waste-
waters are not considered hazardous. However, the
wastewaters managed by these units have been identi-
fied as K044 wastes. This listing does not pertain so
much to the wastewater as it does to the sludges from
these wastewaters.

It should also be made clear that the U.S. EPA is main-
ly concerned with the natural drainageway associated
with these units to which effluent was discharged prior
to the installation of the PVC piping for each of these
units.

Response to Comments at 20. Nothing in Austin’s petition indicates
why the Region’s response to comments on this issue was erroneous.

As the Board has previously stated, a petitioner may not simply
reiterate its previous objections to the draft permit. Rather, “a peti-
tioner must demonstrate why the Region’s response to those objec-
tions (the Region’s basis for its decision) is clearly erroneous or oth-
erwise warrants review.” In re Envotech, L.P. — Milan, Michigan, 6
E.A.D. 260, 268 (EAB 1996) (quoting In re LCP Chemicals — New York,
4 E.A.D. 661, 664 (EAB 1993)). Because Austin provides no discussion
whatsoever as to why the Region’s response to Austin’s comments on
this issue is erroneous or otherwise warrants review, the petition for
review is denied as to this issue.

III. CONCLUSION

The permit is remanded and the Region is directed to reopen the
permit proceedings for the purpose of clarifying its basis for not
including action levels or, alternatively, adding such levels to the per-
mit (which may include conditions addressing the potential synergis-
tic affects of multiple contaminants).? An appeal of the remand deci-
sion will not be necessary to exhaust administrative remedies under
40 C.F.R. § 124.19(f)(1)(iii). On the other issues raised by Austin,
review is denied for the reasons set forth above.

So ordered.

9 Although 40 C.F.R. § 124.19 contemplates that additional briefing typically will be sub-
mitted upon a grant of review, a direct remand without additional submissions is appropriate
where, as here, it does not appear as though further briefs on appeal would shed light on the
issues to be addressed on remand. See In re Delco Electronics Corp., 5 E.A.D. 475, 489 n.15 (EAB
1994). On remand, the Region must also modify the permit in the manner agreed to in the
Region's response to the petition for review. See supra note 4.

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