EPA EAB Board decision
Docket RCRA 98-3, PRD090510793
Decided February 4, 2000
Mixed result
Caribe General Electric Products, Inc.
In re Caribe General Electric Products, Inc. (EAB RCRA Appeal No. 98-3): review denied in part and corrective-action remand
Apply this precedent to your situation
This is citable Board precedent from 2000, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Final EAB decision
This Environmental Appeals Board decision is a final disposition of the permit appeal. Under 40 C.F.R. § 124.19, the Board issues a final order on review of the permit decision. The full text below is from the official EPA release.
About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official EPA EAB release. The full text is the agency's own release.
Read the official release (epa.gov)
Plain-English summary
Caribe General Electric Products, Inc. challenged a post-closure RCRA permit for a retired electroplating facility in Puerto Rico. The permit required corrective action at facility units and two off-site areas of concern. The Board upheld the groundwater notification provision, the designation and treatment of AOC-1, the interim corrective-measures provision, and the six challenged solid waste management units. It remanded the AOC-2 designation because the Region had not provided enough evidence of the required connection to the facility and the threat to human health and the environment. The order does not state a civil penalty.
Decision snapshot
- Cited authorities: RCRA sections 3004(u), 3004(v), and 3005(c)(3); 40 C.F.R. §§ 124.17, 124.18, 124.19, 261.4, 264.101, 270.41, and 270.42
- Outcome: Review was denied in part, while the AOC-2 designation was remanded for further support.
- Key point: Site-specific evidence supported corrective action at AOC-1 but did not yet support the AOC-2 designation.
Full text (EPA EAB public release)
187-274/Sections29-33 10/15/01 4:20 PM Page 696
696 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN RE CARIBE GENERAL ELECTRIC
PRODUCTS, INC.
RCRA Appeal No. 98–3
ORDER DENYING REVIEW IN PART
AND REMANDING IN PART
Decided February 4, 2000
Syllabus
Petitioner Caribe General Electric Products, Inc. (“CGE” or the “company”) filed a
petition for review of a final permit decision (“Final Permit”) issued by EPA Region II
(“Region”) under the Resource Conservation and Recovery Act (“RCRA”) providing for
post-closure care of two hazardous waste impoundments associated with CGE’s retired
electroplating operations at the company’s manufacturing facility in Palmer Ward,
Municipality of Rio Grande, Puerto Rico (the “Facility”). The Facility is in close proximity
to two water bodies, the Rio Mameyes (the Mameyes River) and Honduras Creek. CGE
challenges several permit provisions requiring the company to undertake corrective action
at eight Solid Waste Management Units (“SWMUs”) and two off-site Areas of Concern
(“AOCs”). The company challenges:
(1) the imposition of a groundwater notification provision requiring the company to
notify the Region and potentially affected parties when hazardous constituents migrate
beyond the Facility boundary in greater than background concentrations;
(2) the designation of two off-site AOCs, AOC–1 (Rio Mameyes sediments) and
AOC–2 (Honduras Creek sediments) for corrective action;
(3) the application of conditions generally applicable to SWMUs to the AOCs;
(4) the inclusion of a provision for imposing interim corrective measures (“ICMs”)
without affording CGE the opportunity for notice and comment pursuant to the formal per-
mit modification procedures at 40 C.F.R. § 270.42; and
(5) the designation of six SWMUs at the Facility for further investigation allegedly
without taking into consideration past remedial steps taken by CGE.
Held: (1) The Region has provided a fact-specific, human health and environmental
justification for the challenged groundwater notification provision consistent with the
Board’s previous decisions. The totality of the circumstances depicted by the Region —
the immediate proximity of the Facility to a river serving as a current and future drinking
water source, evidence of recreational swimming in the same river immediately adjacent
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 697
to the Facility, and a groundwater plume in close proximity to the river with cadmium con-
centrations measured above Clean Water Act Maximum Contaminant Levels — warrants
use of a groundwater notification provision with a background level trigger in this case;
(2)(a) The Region’s Rio Mameyes sediment sampling revealing above-background
concentrations of hazardous constituent metals used in the Facility’s operations as well as
other contaminant indicators establishes a sufficient nexus between the Facility and AOC–1
to justify applying RCRA corrective action authority to off-site contamination. Further, the
Region, by pointing to the proximity of AOC–1 to identified swimming and drinking water
uses of Rio Mameyes, has made a site-specific finding of a threat to human health and the
environment warranting corrective action under RCRA’s omnibus provision. However, the
Board remands to the Region its designation of AOC–2 because the Region has not pro-
vided sufficient evidence on the pivotal questions of whether there is the requisite nexus
between AOC–2 and the Facility and whether AOC–2 indeed poses a threat to human
health and the environment;
(b) AOC–1 and AOC–2 are not barred from Agency RCRA jurisdiction by 40 C.F.R.
§ 261.4(a)(2), which excludes from the RCRA definition of “solid waste” “discharges that are
point sources subject” to NPDES permits under the Clean Water Act. The purpose of the
NPDES point source discharge exclusion was to avoid duplication between the RCRA and
NPDES programs, and many of the discharges that potentially impacted the AOCs were not
subject to NPDES permitting because they predated passage of the CWA. Also, the Region
identifies other potential sources of contamination of the AOCs that would not be covered
by the above regulatory exclusion. Finally, requiring corrective action for the two AOCs
would not undercut the Agency’s stated policy of not using its corrective action authority
to duplicate efforts of other regulatory programs since most of the sources of contamina-
tion identified by the Region are not covered by the Facility’s current NPDES permit;
(3) The Board has previously held that the Agency has the discretion to require the
same level of investigation and remediation for AOCs and SWMUs, a point that CGE con-
cedes. Since AOC–1 has been properly designated, the Region can apply to AOC–1 the
same requirements it has applied to SWMUs under the Final Permit. Since the Final Permit
erroneously designates AOC–2 for corrective action, the Region can only apply SWMU
requirements to AOC–2 by providing upon remand a proper basis for AOC–2’s inclusion
in the Final Permit;
(4)(a) Inclusion of an ICMs provision in the Final Permit is appropriate. Limiting lan-
guage in the ICMs provision, factors the Region states will guide its decisions as to whether
to impose a particular ICM, as well as the particular environmental threats posed by the
Facility, provide assurance that the Region will confine its use of ICMs to situations calling
for prompt action, and not use ICMs as a means of avoiding formal notice and comment
permit modification requirements. The Board makes binding upon the Region its pledge
that upon determining that an ICM will be the final corrective measure for site cleanup,
the Region will institute formal permit modification measures under 40 C.F.R. § 270.41.
(b) As a general matter, the Region is not legally required to institute formal permit
modification procedures, including notice and comment requirements, when imposing
ICMs in the Final Permit. The Final Permit provides that plans submitted as a result of the
ICMs provision are automatically incorporated into the Final Permit upon their approval by
the Region. In accordance with the Board’s holding in In re General Electric Co., 4 E.A.D.
615 (EAB 1993), the change therefore does not cause a modification of the Final Permit.
(c) Finally, the ICMs provision does not deny CGE due process. The Final Permit’s
dispute resolution provision, which is available to CGE in the event it wishes to challenge
an ICM, contains all the necessary features the Board has previously deemed sufficient to
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698 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
protect the due process rights of permittees in situations involving contested interim sub-
missions; and
(5) The Region has properly designated the six challenged SWMUs for corrective
action at the Facility. In its Petition for Review of the Final Permit, CGE merely restates its
earlier objections to the permit without explaining why any of the Region’s prior respons-
es were clearly erroneous.
Before Environmental Appeals Judges Ronald L. McCallum,
Edward E. Reich and Kathie A. Stein.
Opinion of the Board by Judge Stein:
I. BACKGROUND
Caribe General Electric Products, Inc. (“CGE” or the “company”) has
filed a Petition for Review (“Petition”) dated May 15, 1998, seeking review
of a permit issued by U.S. EPA Region II (the “Region”) under the
Hazardous and Solid Waste Amendments of 1984 (“HSWA”) to the
Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C.
§§ 6901–6992. As requested by the Environmental Appeals Board (the
“Board”), on July 13, 1998, the Region filed a response to CGE’s Petition
(“Region’s Response”).1 CGE objects to certain corrective action require-
ments that the Region has included in the permit.2
1
After the filing of the Region’s Response, CGE filed a “Reply to the United States’
Response to Petition for Review” (“CGE Reply”) with the Board. The Region moved to
strike the CGE Reply (“Motion to Strike”) on the grounds that it was not accompanied by
any motion seeking leave to file as set forth in the EAB Practice Manual and did not set
forth an appropriate showing of circumstances to support the filing of such a motion. See
Motion to Strike. The Board hereby grants the Motion to Strike and strikes the CGE Reply
from the record. CGE did not seek leave of the Board to file its Reply and in a number of
instances raised new arguments that should have been raised during the comment period
and in the Petition, not presented for the first time in the Reply. See In re Exxon Co., U.S.A.,
6 E.A.D. 32, 33 n.7 (EAB 1995); In re General Motors Corp., 5 E.A.D. 400, 408 n.13 (EAB
1994) (declining to consider new arguments raised in reply briefs on appeal). Moreover,
notwithstanding CGE’s allegations that the Reply is necessary to correct the Region’s mis-
characterizations of data in the administrative record, the Board finds the material issues in
this case are adequately covered in the Petition and the Region’s Response.
Under RCRA section 3004(u), 42 U.S.C. § 6924(u), permits issued after November 8,
2
1984, shall require:
[C]orrective action for all releases of hazardous waste or constituents from any
solid waste management unit at a treatment, storage, or disposal facility seeking
a permit under this subchapter * * *.
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CGE, a subsidiary of General Electric Corporation, owns and oper-
ates a facility, located in Palmer Ward, Municipality of Rio Grande,
Commonwealth of Puerto Rico, which manufactures residential circuit
breakers (the “Facility”). From the inception of operations in 1956 until
1981, CGE conducted electroplating operations at the Facility. The elec-
troplating process generated wastewater, which the company discharged
via underground piping to two unlined, onsite surface impoundments
(“waste lagoons” or “lagoons A and B”).3 The wastewaters were tem-
porarily held in the waste lagoons to allow particulates in the wastewater
to settle out and accumulate as a sludge, which constituted the listed haz-
ardous waste4 F006.5 Region’s Response, app. H (Draft Permit Fact Sheet
at 2 (July 29, 1997)). According to the Part A RCRA permit application that
CGE filed in November 1980, the two unlined lagoons accumulated
50,000 pounds per year of F006 listed hazardous waste.6
The corrective action requirements that the Region has imposed
upon CGE, and to which the company objects, are part of a “Final Post-
Closure Permit” (“Final Permit”) obligating CGE to provide post-closure
care for the two waste lagoons described above. Although CGE had per-
formed certain closure activities on the lagoons pursuant to an earlier
consent order,7 the Region determined that CGE had to submit a permit
3
In its application for a Final Post-Closure Permit, see infra, CGE stated that the waste-
water that its electroplating operation discharged to the two waste lagoons “contain[ed]
cadmium, chromium, cyanide, nickel, and zinc.” See Region’s Response, app. H at 1–6
(RCRA Part B Permit Application (July 30, 1996)).
4
Wastes not otherwise excluded from regulation are considered hazardous either if
they exhibit a characteristic of hazardous waste or if they appear on one of the lists of haz-
ardous wastes set forth in 40 C.F.R. § 261.31. See 40 C.F.R. § 261.3.
5
F006 listed hazardous waste includes, with specified exceptions, “wastewater treat-
ment sludges from electroplating operations * * *.” See 40 C.F.R. § 261.31. Several hazardous
constituents formed the basis for this listing, including among others cadmium, hexavalent
chromium, nickel, and cyanide (complexed). 40 C.F.R. pt. 261, app. VII.
6
According to the “Draft Permit Fact Sheet” that accompanied the draft permit, CGE’s
Part A permit application also indicated that the listed hazardous wastes F007, F008, F009,
and F017 and the characteristic hazardous waste D002 were generated and managed in
storage containers (barrels and drums), storage tanks, and treatment tanks. Region’s
Response, app. G at 2 (Draft Permit Fact Sheet (July 29, 1997)).
7
CGE performed closure activities on the two waste lagoons from November 1989 to
September 1991 pursuant to a February 1989 Consent Order. The Consent Order resulted
from a RCRA section 3008 action that the Region took against CGE in September 1987 to
achieve the closure of the two lagoons, which had stopped receiving wastes in 1981. CGE
claims that pursuant to the approved closure plan, CGE, “between November 1989 and
September 1991 * * * removed all liquids, sludges, and sludge residues from Lagoons A and
Continued
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700 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
for continued post-closure work because CGE could not demonstrate that
it satisfied the applicable standards in 40 C.F.R. § 264.228 for closure of
the two lagoons by “removal” or “decontamination.” 8 See 40 C.F.R.
§ 270.1(c)(5) (mandating a post-closure permit unless standards for clo-
sure by removal or decontamination are met).
In its Petition, CGE does not contest having to obtain a post-closure
permit for the two waste lagoons. Nor does CGE challenge any of the
post-closure requirements specific to the two lagoons that appear in a
separate portion of the Final Permit.9 Rather, CGE objects to other cor-
rective action requirements in the Final Permit that apply to certain Solid
Waste Management Units (“SWMUs”)10 and Areas of Concern (“AOCs”)11
B, and either removed, or decontaminated and left in-place, all associated piping and relat-
ed structures.” In 1992, CGE certified closure of the Facility. However, EPA has never
approved the certification nor released CGE from the financial assurance requirements at
40 C.F.R. § 265.143. See Region’s Response, app. F at II–3 (Final RCRA Post-Closure Permit
(“Final Permit”)).
8
The Region determined that the above-mentioned lagoons required post-closure
permits based on the results of groundwater monitoring conducted from December 1991
to September 1997 near the two waste lagoons. The monitoring revealed exceedances of
groundwater protection standards set forth at 40 C.F.R. § 264.94. The company conducted
the groundwater monitoring as part of a closure plan mandated by the Consent Order. See
supra note 7.
Pursuant to the post-closure care requirements at 40 C.F.R. §§ 264.117–120, CGE is
9
required to submit for approval and then operate a groundwater monitoring program and
“work plan to characterize the nature and extent of any dissolved cadmium plume which
may currently be present in the groundwater beyond the point of compliance.” Final
Permit at IV–5.
10
RCRA section 3004(u) requires corrective action “for all releases of hazardous waste
or constituents from any solid waste management unit at a treatment, storage, or disposal
facility seeking a permit under this subchapter * * * . (emphasis added)
Although neither the statute nor the regulations define the term “solid waste management
unit,” the Agency has developed a working definition of the term through policy guidance
and individual permits. See Advance Notice of Proposed Rulemaking (“1996 ANPR”), 61
Fed. Reg. 19,432, 19,442 (May 1, 1996). In language closely tracking previous policy state-
ments, the Final Permit at issue in this proceeding defines a SWMU to include:
any discernible waste management unit at which solid waste has been placed at
any time from which hazardous waste, including hazardous constituents, have
migrated or may migrate, irrespective of whether the unit was intended for the
management of hazardous or solid wastes * * * .
Final Permit at I–13.
11
The Board has previously upheld the designation of corrective action requirements
for non-SWMUs (traditionally designated “Areas of Concern”) under the so-called omnibus
clause of RCRA section 3005(c)(3), 42 U.S.C. § 6925(c)(3). See infra Part II.B.2.
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 701
encompassing other locations within and outside the Facility. The basis
for the designation of the AOCs and SWMUs was an August 1986 RCRA
Facility Assessment (“RFA”)12 that the Region conducted at the Facility, as
supplemented by additional information that the company submitted to
the Region. Final Permit at II–3 to II–4.
In seeking review of the Final Permit, CGE raises five issues in its
Petition. We address these issues in our decision:
1) whether the Region clearly erred by imposing a
groundwater notification provision;
2) whether the Region clearly erred and abused its dis-
cretion by designating two off-site AOCs for corrective
action;
3) whether the Region clearly erred by applying condi-
tions generally applicable to SWMUs to the AOCs;
4) whether the Region clearly erred by including a pro-
vision for interim corrective measures without affording
CGE the opportunity for notice and comment pursuant to
40 C.F.R. § 270.42; and
5) whether the Region clearly erred by designating six
SWMUs at the Facility for further investigation without
considering past remedial steps taken by CGE.
II. DISCUSSION
A. Standard of Review
Under the rules governing this proceeding, a RCRA permit ordinari-
ly 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 Austin Powder Co., 6 E.A.D. 713, 715 (EAB 1997); In re Johnston Atoll
Chem. 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
12
The RFA is the first stage of a multi-step corrective action process. During the RFA,
the Region attempts to identify actual and potential releases of hazardous waste or haz-
ardous constituents. This step typically occurs before a permit is issued. The RFA and sub-
sequent steps of the multi-stage corrective action process are thoroughly described in the
Agency’s 1996 ANPR, supra note 10, 61 Fed. Reg. at 19,443–54. See also Corrective Action
for Solid Waste Management Units (SWMUs) at Hazardous Waste Management Facilities
(“Subpart S Proposal”), 55 Fed. Reg. 30,798 (1990) (proposed July 27, 1990) (describing the
corrective action process).
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702 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
124.19 states that “this power of review should only be sparingly exer-
cised,” and that “most permit conditions should be finally determined at
the Regional level * * *.” 45 Fed. Reg. 33,412 (May 19, 1980). The burden
of demonstrating that review is warranted is on the petitioner. 40 C.F.R.
§ 124.19(a); see also Allied-Signal, 5 E.A.D. at 292.
B. Petitioner’s Claims
1. Groundwater notification provision
Contested condition III.B.10.(a) of the Final Permit requires CGE to
provide notice to the Region and “parties potentially affected by the
release” 13 whenever hazardous constituents that have been released from
a SWMU at the Facility migrate beyond the boundary of the Facility in
greater than background concentrations. This provision is closely mod-
eled after a “groundwater notification” provision in the Agency’s Subpart
S Proposal, 55 Fed. Reg. 30,798 (July 27, 1990),14 a document which the
Agency historically employed as a basic blueprint for carrying out its cor-
rective action authority.15 CGE argues that permit condition III.B.10.(a)16
In the Final Permit, the Region revised the groundwater notification provision to
13
require notice only to the Region and “affected” parties. The draft permit required notice
to both the Region and “any person who owns or resides on the land which overlies the
contaminated groundwater.” See Final Permit at III–15; Region’s Response, app. A at 101
(Responsiveness Summary (“Response to Comments”)).
14
The groundwater notification provision that served as a model for the one in the
contested permit is found at § 264.560 of Subpart S Proposal, supra note 12. 55 Fed. Reg.
at 30,882.
15
The Agency recently announced that it would withdraw most of the Subpart S
Proposal, which it previously had intended to incorporate into a final rule, and instead rely
on current regulations, supplemented by current and planned guidance, to implement the
corrective action program. See Corrective Action for Solid Waste Management Units at
Hazardous Waste Management Facilities, 64 Fed. Reg. 54,604, 54,606 (partial withdrawal of
rulemaking proposal) (Oct. 7, 1999). In its announcement, the Agency also stated that its
1996 ANPR, supra note 10, which updated many aspects of the Subpart S Proposal, would
now serve as “the primary corrective action guidance.” 64 Fed. Reg. at 54,607 (citing 1996
ANPR, 61 Fed. Reg. 19,432 (May 1, 1996)). However, the Agency noted that previous pol-
icy guidance documents, such as the Subpart S Proposal, would “still continue * * * to pro-
vide guidance for corrective action implementation.” Id. In accordance with these state-
ments, we will refer to appropriate portions of the Subpart S Proposal that have not been
replaced or superseded by the 1996 ANPR.
16
Permit condition III.B.10.(a) states:
If at any time the Permittee discovers that hazardous constituents in the ground-
water have been released from a solid waste management unit at the facility, and
Continued
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 703
is clearly erroneous and an abuse of discretion because the Region has
provided no fact-specific, human health or environmental justification for
the notification provision.
Both parties agree on the basic criterion governing the proper inclu-
sion of this provision, which is whether the provision is necessary to pro-
tect human health and the environment. In In re Allied Signal, Inc., 4
E.A.D. 748 (EAB 1993), we remanded a groundwater notification provi-
sion because the Region failed to make a “fact-specific” demonstration on
the record that the groundwater posed a threat to public health and the
environment.17 Id. at 757–62. Our emphasis on the need for a site-specific
showing of such a threat in Allied flowed from previous decisions and
the Agency’s own policy declarations, which stated that RCRA permit
conditions not required by final regulation, but instead based on policy
guidance (such as the groundwater notification provision at issue here),
must be defended as appropriate on a case-by-case basis. See In re
General Motors Corp., Delco Moraine Div., 4 E.A.D. 334, 343 n.15 (EAB
1992). Even apart from the need to ensure legal compliance, Agency
guidance documents on corrective action state the pragmatic need to tai-
lor RCRA corrective action requirements to site-specific conditions in
order to “avoid imposing unnecessary or inappropriate burdens upon the
permittee.” In re American Cyanamid Co., 3 E.A.D. 657, 661 (Adm’r
1991); see, e.g., 1996 ANPR, 61 Fed. Reg. at 19,434 (“No two cleanups will
follow exactly the same course, and therefore the [corrective action] pro-
gram has to allow significant latitude to the decisionmaker in structuring
the process, selecting the remedy, and setting cleanup standards appro-
priate to the specifics of the situation.”) (citing preamble, Subpart S
Proposal, 55 Fed. Reg. at 30,802).
have migrated beyond the facility boundary in concentrations that exceed back-
ground levels, the Permittee shall, within 15 calendar days of discovery, provide
written notice to EPA, and all parties potentially affected by the release.
17
In Allied, we identified either RCRA section 3004(v), 42 U.S.C. § 6924(v) (requiring
the Agency to set standards requiring owners and operators of treatment, storage, and dis-
posal facilities (“TSDFs”) to undertake corrective action outside facility boundaries where
necessary to protect human health and the environment), or the omnibus clause, RCRA
section 3005(c)(3), 42 U.S.C. § 6925(c)(3) (requiring that “[e]ach permit issued under this
section shall contain such terms and conditions as the Administrator (or the State) deter-
mines necessary to protect human health and the environment”) as possible sources of
authority for a groundwater notification provision. Allied, 4 E.A.D. at 759. Significantly,
both statutory provisions require as a condition precedent to their implementation a “deter-
mination of necessity based on protection of human health and the environment.” See id.
at 761 n.15.
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CGE contends that the groundwater notification measure is “unrea-
sonable and unnecessary for protection of human health and the envi-
ronment, since the Facility is located in an area where groundwater is not
used for drinking water and therefore no likely route of human exposure
exists.” Petition at 4. CGE also avers that the Region’s use of “background
levels” of hazardous constituents to trigger application of the notification
provision, rather than “health-based levels,” is similarly unjustified on
environmental and human health grounds. Id. at 4–5. Finally, CGE
objects that the Region has failed to provide any justification for includ-
ing this provision. Id. at 5.18
In response, the Region notes that the Rio Mameyes (Mameyes
River), which runs adjacent to the Facility, currently is a source of drink-
ing water for the surrounding community and will likely become an even
more important one in the future. As the Region states, “[t]he particular
facts show very clearly that any contaminated groundwater migrating
from the facility will reach and impact the adjacent Rio Mameyes, which
has been used as a public drinking water source since 1995, and which
will be used on a much more intensive basis as a drinking water source
in the future.” Region’s Response at 7. The Region, for example, notes
that pursuant to a permit issued in 1995 by the Puerto Rico Department
of Natural Resources and Environment (“PRDNRE”), the Puerto Rico
Aqueduct and Sewer Authority (“PRASA”) draws water from the Rio
Mameyes for domestic use, on an emergency basis, through a “raw water
intake” located 600 meters downstream of the Facility. See Region’s
Response, app. B (Timothy Gordon Memorandum); Region’s Response,
app. C (Permit Number PTR–86–93). In addition, it notes that PRASA has
already obtained a permit from the Army Corps of Engineers to construct
a new drinking water intake facility at the same downstream location that
would allow PRASA to withdraw a greater quantity of Rio Mameyes water
(between 2.5 million to 5 million gallons per day). See Region’s Response,
app. D (Permit Number PTR–86–93, Information Sheet, Department of
the Army Permit No. 199402941); Response to Comments at 102.19
18
CGE’s Reply raised several new arguments regarding the groundwater notification
provision, among them that CGE’s continued groundwater monitoring program, in con-
junction with its delineation of the cadmium plume pursuant to the Final Permit, will pro-
vide added safeguards and a more than adequate warning of any possible cadmium plume
migration to the Rio Mameyes. Similarly, CGE argues in its Reply that contested permit con-
dition III.B.6. relating to interim corrective measures provides a more than adequate mech-
anism for EPA to direct CGE to notify appropriate persons of conditions which pose an
immediate threat to human health. As these arguments could have been but were not
raised in the Petition, we will not consider them. See supra note 1.
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 705
Moreover, the Region notes that recreational swimming takes place in the
Rio Mameyes immediately adjacent to the Facility. Id.
The Region also seeks to show how specific characteristics of the
Facility demonstrate a threat to public health and the environment that
warrants the contested provision. First, the Region notes that in 22 of 24
quarters that monitoring took place, downgradient well (D–2) measured
groundwater levels of cadmium exceeding the Maximum Contaminant
Level (“MCL”) under the Safe Drinking Water Act (“SDWA”), 42 U.S.C.
§§ 300f to 300j–26.20 Region’s Response at 7. Referring to a set of maps
included in CGE’s post-closure permit application that depict the Facility,
19
CGE states that the Region raised this “new water use information” regarding the Rio
Mameyes for the first time during its Response to Comments, and that the company
“believes that this information was not part of the Administrative Record at the time the
Director prepared the [June 29, 1997] draft Permit * * *.” Because of the information’s pur-
ported late timing, CGE contends it “has not had the opportunity to further investigate this
information or to comment on its validity.” Petition at 4 n.1. Thus, CGE appears to suggest
that the information’s arrival after the date the draft permit was prepared has somehow
prejudiced its ability to respond to the Region’s arguments on this topic. Yet the company
does not argue that the information is improperly in the administrative record.
CGE cannot reasonably protest that it has been prejudiced or surprised by the arrival
of this information in the later stages of this proceeding. As plainly contemplated by the
applicable regulations, the Region has merely included in the administrative record infor-
mation in response to points that CGE itself raised during its comments on the draft permit
concerning the purported non-use of groundwater for drinking water in the area of the
Facility. See Response to Comments, Comment #46, at 101 (responding to CGE’s assertion
in Comment #46 that “[the Facility] is located in an area where ground water is not used for
drinking water and therefore there is no likely route of human exposure to contamination”).
Moreover, the applicable regulations clearly state that the “Regional Administrator shall base
final [permit] decisions * * * on the administrative record.” 40 C.F.R. § 124.18(a). The admin-
istrative record specifically includes “the response to comments * * * and any new material
placed in the record under that section [§ 124.17 titled Response to Comments].” 40 C.F.R.
§ 124.18(b)(4). As further detailed at 40 C.F.R. § 124.17(b), “any documents cited in the
response to comments shall be included in the administrative record for the final permit
decision * * *.” In addition, “if new points are raised or new material supplied during the
comment period, EPA may document its response to those matters by adding new materi-
als to the administrative record.” Id. Thus, the Region appropriately included information in
the administrative record responding to CGE’s comments. Moreover, the appellate review
process affords CGE the opportunity to question the validity of the material in the adminis-
trative record upon which the Agency relies in issuing a permit.
20
The SDWA requires public water systems to adopt MCLs for contaminants that may
have an adverse impact on human health. MCLs are to be set as close as “feasible” to a
maximum level at which “no known or anticipated adverse effects on the health of per-
sons occur and which allows an adequate margin of safety.” See SDWA § 1412(b)(5), 42
U.S.C. § 300g–1(b)(5).
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706 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
the location of groundwater monitoring wells, and groundwater eleva-
tions at different points on the property, the Region explains how the
geographical configuration of waste lagoons, measured groundwater
contamination at monitoring well D–2, and Rio Mameyes together pose
a threat to public health and the environment. See Region’s Response,
app. H, Figs. 1–8, 1–9, and 1–10 (“Facility Maps”) (RCRA Part B Permit
Application (July 30, 1996)). For example, the Region notes that the
lagoons, which it believes are the source of the cadmium, lie at an ele-
vation only 10–15 feet above the river, which “has a nearly coincident
boundary with the facility.” Region’s Response at 8; Facility Maps. The
Region also indicates that the groundwater level in downgradient well
D–2 “is very close to the surface level of the adjacent river, measured at
a nearby point.” Id. at 8–9. (As indicated by the Facility Maps, monitor-
ing well D–2 is approximately 400 feet from the river, and situated at the
edge of waste lagoon B, between lagoon B and the river.) Based on the
above information, the Region asserts that “should the groundwater
plume migrate to the facility boundary, it will reach and impact the river
waters.” Region’s Response at 9.
The Region also offers site-specific information to refute CGE’s
objection that background level (rather than a health-based standard
(e.g., MCL)) is an inappropriate “trigger” for groundwater notification.
The Region argues that such notification is necessary because of the
“coincidence of the facility boundary with the nearby Rio Mameyes” and
the “movement and character of a contaminated groundwater plume.” Id.
Noting that groundwater plumes characteristically have a highly contam-
inated main body or “core” with lower contamination in surrounding
areas, the Region states that a background level trigger will indicate that
the edge of the contaminated cadmium plume has reached the river, and
therefore provide notification to affected persons before the more con-
taminated core (identified by higher than MCL concentrations in well
D–2) migrates to the Facility edge and Rio Mameyes. Region’s Response
at 9. Given the nature of the plumes, the Region states that using a high-
er health-based level would result in communities only receiving notifi-
cation after a substantial surrounding area of contamination has already
entered the river. Emphasizing the greater protection afforded by a back-
ground trigger vis à vis the health-based level, the Region states that the
appropriate “time for notification at issue is before the groundwater
plume fully passes the boundary and adjacent river.” Id. at 10.
After reviewing the two parties’ arguments, we find that the Region
has not clearly erred or abused its discretion in including in the Final
Permit a groundwater notification provision with a background level trig-
ger. The Region’s arguments supporting such notification as necessary to
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 707
protect public health and the environment strike us as reasonable given the
Rio Mameyes’ immediate proximity to the Facility, current and future drink-
ing water uses of the Rio Mameyes downstream of the Facility, evidence of
recreational swimming on the Rio Mameyes immediately adjacent to the
Facility, and the history of cadmium exceedences above MCLs in well D–2,
indicating a groundwater plume in close proximity to the Rio Mameyes. In
sum, the totality of the circumstances as depicted by the Region provides
a site-specific justification for this provision, consistent with our previous
decisions. For these reasons, we deny review on this issue.
2. Designation of Areas of Concern (AOCs)
Condition III.A.4. of the Final Permit requires CGE to undertake cor-
rective action at two-off-site AOCs. AOC–1 includes “sediments in the Rio
Mameyes in areas potentially impacted by past releases from the
Permittee’s facility.” AOC–2 includes sediments of Honduras Creek “in
areas potentially impacted by past releases from the Permittee’s facility.”
See Final Permit at III–8. The Facility is adjacent to both water bodies
whose sediments are the focus of the designated AOCs. In alleging that
the Facility’s operations potentially impacted these sediments, the Region
notes that during the Facility’s electroplating operations, liquid which col-
lected in the two waste lagoons was released via an outfall (now aban-
doned) into the Rio Mameyes. Region’s Response at 12–13. The Region
does not, however, attribute contamination of the sediments in question
solely to discharges from the waste lagoons. The Region names as other
possible sources of contamination of these sediments “contaminated
groundwater to surface waters” as well as the Facility’s concrete drainage
system. Id. at 10. The concrete drainage system, which has operated since
the Facility’s inception, drains stormwater runoff from the Facility through
concrete channels, discharging the runoff to both the Rio Mameyes and
Honduras Creek. See Region’s Response, app. H at 1–5 (RCRA Part B
Permit Application (July 30, 1996)).
In its Petition, CGE contends that the Region’s decision to impose
corrective action at these AOCs is clearly erroneous and “runs afoul” of
the Agency’s previous policy. Petition at 9. As explained more fully
below, it argues that the Region lacks legal authority to regulate the off-
site AOCs under these circumstances and that the Region has failed to
make the requisite human health and environmental findings that would
bring the AOCs within the scope of EPA’s jurisdiction.
Both parties acknowledge that prior Agency decisions have held that
the omnibus provision of RCRA provides the Agency with the necessary
authority to impose corrective action requirements on non-SWMUs at
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708 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
TSDFs (typically referred to as AOCs). These decisions have emphasized
that a condition precedent to the exercise of that authority is a fact-spe-
cific showing by the Region that corrective action with regard to a par-
ticular AOC is necessary to protect human health and the environment.
See, e.g., In re Sandoz, 4 E.A.D 75, 81 (EAB 1992); In re Morton Int’l
Corp., 3 E.A.D. 857, 864–65 (Adm’r 1992); In re Amerada Hess Corp., 2
E.A.D. 910, 911–13 (Adm’r 1989). Furthermore, the parties recognize that
where the Agency seeks to require corrective action for contamination
outside facility boundaries, there must be a sufficient nexus between the
off-site location and the facility. See, e.g., In re General Elec. Co. , 4 E.A.D.
358, 369–71 (EAB 1992) (ruling that corrective action for off-site areas is
authorized only where the contamination “is migrating or has migrated”
to the off-site area from the facility).21 The Final Permit reflects the nexus
concept by defining an AOC to be “an area at a facility, or an area off-site
impacted by migration of contamination from the facility, where haz-
ardous waste and/or hazardous constituents are present or are suspected
to be present as a result of a release from the facility.” Final Permit at I–12
(emphasis added). Nevertheless, CGE and the Region are in disagreement
over whether the facts of this case justify, under the foregoing principles,
the imposition of corrective action requirements on the AOCs in question.
CGE, seeking to challenge the Region’s establishment of the neces-
sary connection between the AOCs and the Facility, maintains that “the
Director has impermissibly ignored its limited authority to regulate off-
site areas by * * * attempting to include sediments in the Rio Mameyes
and Honduras Creek as AOCs without making a finding on the record
that contaminants of concern have migrated from the Facility to these
alleged [AOCs].” Petition at 8. With regard to AOC–1, CGE provides gen-
eral statements about the limited scope and value of the sampling data
21
General Electric, which CGE cites in support of this proposition, actually concerned
off-site contamination originating from a SWMU, rather than an AOC, and the parties’ argu-
ments and the Board’s decision concerned RCRA section 3004(v) and 40 C.F.R. § 264.101,
rather than the omnibus authority. By relying on General Electric, a non-AOC case, CGE
appears to assume that any off-site contamination, whether from a SWMU, or otherwise an
AOC, is subject to corrective action as long as there is the requisite nexus to a TSDF and
corrective action is needed to protect human health and the environment. Although we
have not previously decided whether the RCRA omnibus authority reaches off-site AOCs,
nothing in the language of the statute itself suggests that corrective action authority could
not extend to off-site AOCs, if the Region can establish the requisite nexus and the action
is necessary to protect human health and the environment. See In re Allied-Signal, Inc.,
4 E.A.D. at 761 n.15 (“The analysis [of the adequacy of a notice provision pertaining to
contamination migrating beyond the facility boundary] is no different if instead of RCRA
§ 3004(v) the statutory authority for including the notice provision in the permit is deemed
to be the so-called omnibus clause * * *. The omnibus clause and RCRA § 3004(v) both
require, as a condition precedent to implementation, a determination of necessity based
on protection of ‘human health and the environment’”).
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 709
the Region collected on the Rio Mameyes and its sediments during the
1986 RFA. For example, CGE maintains that the Region’s data “indicates
that surface water and sediment conditions are within background ranges
[and] below EPA drinking water standards * * * .” Petition at 9. CGE also
contends that the Region’s sampling in connection with AOC–1 provides
little or no evidence of a threat to public health and the environment,
stating that sediment samples revealed concentrations below the
Agency’s “approved clean-up criteria concentrations used for closure of
the lagoons, and/or below EPA Region III risk-based concentrations for
soil ingestion in a residential area.” Id.
The Region, while not disputing CGE’s allegations of limited surface
water data indicating contamination from the Facility, challenges CGE’s
arguments by presenting evidence that concentrations of metal “con-
stituents” and contamination “indicators” in a single sample of Rio
Mameyes sediments exceeded background levels in several instances. For
example, the Region states that a sample of Rio Mameyes sediments
potentially impacted by the now-abandoned outfall leading from the
waste lagoons to the river, see supra, revealed higher levels of zinc and
nickel compared to a background river sediment sample upstream from
the Facility, providing evidence of a connection between the Facility and
AOC–1. In addition, the Region observes that the same sample of Rio
Mameyes sediments also showed TOX (total organic halogen) and TOC
(total organic carbon) concentrations that were “approximately 8 times
and 5 times their respective background concentrations in a background
sample.” Region’s Response at 13; Response to Comments at 86.
Seeking to present the TOX and TOC results as evidence of con-
taminant migration via groundwater from the Facility, the Region explains
that TOX and TOC are used as indicators of groundwater contamination
“pursuant to the interim status groundwater monitoring requirements set
forth at 40 C.F.R. § 265.92(b)(3).” 22 Id. The Region states that under this
regulation, which was applicable to the company’s two hazardous waste
22
Section 265.92(b)(3) of Title 40 of the Code of Federal Regulations, contained in sub-
part F of Title 40, imposes interim status standards for owners and operators of TSDFs
under RCRA. Subpart F, with certain specified exceptions, requires owners and operators
of surface impoundments, landfills, and land treatment facilities to implement groundwa-
ter monitoring programs “capable of determining the facilit[ies’] impact on the quality of
groundwater in the uppermost aquifer underlying the facilit[ies] * * *.” 40 C.F.R. § 265.90(a).
As part of a groundwater monitoring program, owners and operators are required to sam-
ple groundwater in monitoring wells for a set of “indicator parameters,” including TOX and
TOC, in order to determine the impact of the facilities on groundwater. 40 C.F.R. § 265.92.
The monitoring system must consist of wells “upgradient” of waste management areas,
which are designed to measure background groundwater quality, as well as monitoring
Continued
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710 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
lagoons, any “statistically significant increase in either [TOC or TOX] is
taken as evidence of a release of a hazardous waste or hazardous con-
stituents into the groundwater.” Region’s Response at 13; Response to
Comments at 86. The Region argues that the elevated TOX and TOC
results in the sediment sample should similarly “indicate a migration of
hazardous waste or constituents from the facility” to AOC–1 via ground-
water, which the Region has identified as a possible route of contamina-
tion from hazardous wastes in the two lagoons to AOC–1. Region’s
Response at 13–14; Response to Comments at 86.
As to AOC–2, the Region, while acknowledging that it lacks sediment
or water data on Honduras Creek, notes that during the 1986 RFA it
detected cadmium at a concentration 65 times higher than the health-
based MCL of 10 micrograms per liter (pursuant to 40 C.F.R. § 141.11) in
a single water sample taken from the concrete drainage system leading
into Honduras Creek. Region’s Response at 14; Response to Comments at
88. The Region, in an effort to refute CGE’s arguments that the two AOCs
do not pose a threat to public health and the environment, also states
how contaminants in the river sediments could harm the previously men-
tioned downstream drinking water sources on the Rio Mameyes as well
as threaten recreational users of the River and Honduras Creek “via der-
mal contact and accidental ingestion.” Region’s Response at 16–17.
After examining the two parties’ arguments, we determine that the
Region did not clearly err by designating the Rio Mameyes sediments as
an AOC warranting further study, sampling, and characterization, as pre-
scribed in the Final Permit’s corrective action requirements.23 The fact that
zinc and nickel, both constituents of wastewater from CGE’s electroplat-
ing operations (see supra note 3), occurred in greater than background
concentrations off-site in sediments close to the facility boundary strong-
ly suggests that the exceedances are attributable to the Facility. The high-
er than background concentrations of TOC and TOX in the sediment
sample provide some further indication of a nexus between the Facility
and AOC–1, given that TOC and TOX are used to indicate migration of
hazardous waste or hazardous waste constituents into groundwater,
which the Region identifies, supra, as a possible route of contamination
of the river sediments. Collectively, this information establishes a suffi-
cient nexus between the Facility and the alleged contamination to justify
requiring further study and characterization of the off-site contamination.
wells located “downgradient” of such areas, which are designed to “detect any statistically
significant amounts of hazardous waste or hazardous waste constituents that migrate from
the waste management area to the uppermost aquifer.” Id.; 40 C.F.R. § 265.91(a).
23
Condition III.A.5. of the Final Permit describes corrective action requirements for
AOC–1. See infra Section II.B.5.
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 711
Further, the sampling results satisfy the Final Permit’s definition of
“AOC,” see supra, by indicating contamination or potential contamina-
tion24 of the river sediments by “hazardous waste” or “hazardous con-
stituents.” Zinc and nickel were present in the wastewater that produced
the listed hazardous waste F006 generated by the Facility, see supra
Section I, and the metals’ above background concentrations in the Rio
Mameyes sediments can thus be seen as indicators of the presence of
F006 outside the Facility’s boundaries. Also, the nickel found in the sed-
iment sample fits the definition of “hazardous constituent” in the appli-
cable regulations in Title 40 of the Code of Federal Regulations, since
nickel is one of the constituents that formed the basis for the Agency’s
listing of hazardous waste F006, as described in Appendix VII of part 261
of Title 40.25
In addition, we find that the Region, by pointing to the proximity of
the contaminated or potentially contaminated sediments to identified
recreational swimming and drinking water uses of the Rio Mameyes, has
made a site-specific finding of a threat to human health and the environ-
ment meriting corrective action. See Response to Comments at 84–88, 102.
With respect to the specific concerns CGE raised in its Petition about
the sediment samples for AOC–1, we reject review because CGE has not
shown why the Region’s prior response, as set forth in its Response to
Comments, is clearly erroneous. In its comments on the draft permit, CGE
contended that the Rio Mameyes soil samples do not indicate a threat to
human health or the environment because the samples did not exceed
“approved clean-up criteria used for closure of the impoundments at the
CGE facility” and “EPA Region III risk-based concentrations for soil inges-
tion.” Response to Comments at 86. In its Response to Comments, the
Region responded that such standards were “not relevant or applicable
standards for assessing human health threat or environmental quality in
fresh water sediment samples.” Id. CGE’s Petition merely parrots its orig-
inal comment on this subject without explaining why the Region’s
response was clearly erroneous. See Petition at 9. As the Board has pre-
viously stated in denying permit reviews, a petitioner may not simply reit-
erate its previous objections to a draft permit. Rather, a petitioner must
The Final Permit’s definition of “AOC” states that an AOC “shall include area(s) of
24
potential or suspected contamination as well as actual contamination.” Final Permit at I–12.
25
Section 260.10 of Title 40 of the Code of Federal Regulations defines “hazardous
waste constituent, ” in relevant part, as a “constituent that caused the Administrator to list
the hazardous waste in part 261, subpart D, of this chapter * * *.” Appendix VII to part 261
of Title 40 identifies constituents that form the basis of the Administrator’s listing of haz-
ardous wastes.
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712 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
demonstrate why the Region’s response to those objections (the Region’s
basis for its decision) is clearly erroneous. In re Envotech, L.P., 6 E.A.D.
260, 268 (EAB 1996) (quoting In re LCP Chem., 4 E.A.D. 661, 664 (EAB
1993)); see also In re Austin Powder Co., 6 E.A.D. 713, 721 (EAB 1997)
(rejecting review of RCRA permit on particular issue because petitioner
simply reiterated previous objections to a draft permit).
However, we have decided to remand to the Region its decision to
designate the Honduras Creek sediments as AOC–2 and impose correc-
tive action requirements. We are not persuaded that the Region has pro-
vided sufficient evidence on the pivotal questions of whether there is the
requisite nexus between Honduras Creek sediments and the Facility (i.e.,
whether the contaminants have migrated or are migrating to Honduras
Creek sediments from the Facility) and whether the sediments pose a
threat to human health and the environment.
We note that unlike the type of information it provided in support of
AOC–1, the Region never collected samples of the Honduras Creek sed-
iments or water for the purpose of comparison with background samples,
a procedure that could have provided stronger evidence of whether off-
site migration occurred or is occurring. Moreover, the Region does not
explain why it did not collect such samples, instead appearing to justify
its selection of AOC–2 on the basis of a single sample of concrete
drainage system water, and its knowledge that the concrete drainage sys-
tem discharged into Honduras Creek. See Response to Comments at 87.
This information strikes us as too tenuous given the Final Permit’s defi-
nition of “AOC.” According to this definition, an AOC is “an area at a
facility, or an area off-site impacted by migration of contamination from
the facility, where hazardous waste and/or hazardous constituents are
present or are suspected to be present as a result of a release from the
facility.” Final Permit at I–12 (emphasis added). In addition, in its
Response to Comments on the draft permit, the Region does not specify
the human and environmental threats posed by Honduras Creek sedi-
ments that justify the use of corrective action. See Response to Comments
at 84–88.
On remand the Region should both furnish information on (1) the
contents of the Honduras Creek sediments in a way that will, consistent
with the foregoing definition, provide greater assurance of an adequate
nexus between the sediments and the Facility; and (2) the public health
and/or environmental threats posed by the sediments that justify the
imposition of off-site corrective action requirements. In the alternative,
the Region may reissue the permit without AOC–2 so that the Region’s
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 713
corrective action requirements better square with the information now in
the administrative record.
3. NPDES Permitting and Designation of AOCs
CGE also maintains that AOC–1 and AOC–2, even if impacted by
migration from the Facility, are nevertheless outside RCRA jurisdiction
because they are attributable to outfalls that are subject to the National
Pollution Discharge Elimination System (“NPDES”) program,26 and as such
are exempted from definition of “solid waste.” In support of this position
CGE cites 40 C.F.R. § 261.4(a)(2), which excludes from the RCRA defini-
tion of “solid waste” “discharges that are point source discharges subject”
to NPDES permits.27 Petition at 8.
Noting that corrective action authority applies regardless of how far
in the past a release occurred, the Region responds that the NPDES point
source discharge exclusion does not apply to the AOCs in question. The
Region’s argument is based on its claims that the discharges that poten-
tially impacted AOC–1 (from the abandoned outfall leading from the
waste lagoons to the Rio Mameyes) and AOC–2 (from the concrete
drainage system) were not subject to NPDES permitting for approximate-
ly 15 years prior to the passage of the Clean Water Act (“CWA”) in 1972.
In support of its position, the Region cites Inland Steel Co. v. EPA, 901
F.2d 1419, 1423 (7th Cir. 1990), which held that the purpose of the NPDES
point source discharge exclusion was to avoid duplication between the
RCRA and NPDES programs. Such duplication, maintains the Region,
would not be a relevant concern during most of the Facility’s period of
operations, and thus the AOCs would be subject to corrective action
under RCRA.
We reject CGE’s NPDES point source discharge exclusion argument
concerning the AOCs, and find that the NPDES point source exclusion
does not apply to most of the waste discharges in the case at hand. First,
it is undisputed that the wastewater discharges from the lagoons and con-
crete drainage system began in 1956 with the Facility’s inception.
(Discharges from the lagoon continued to the end of the electroplating
operations in 1981, while those from the concrete drainage system con-
tinue today. See infra note 28.) Many of these discharges long predate the
The NPDES program, outlined in CWA section 402, 42 U.S.C. § 1342, is the principal
26
mechanism for control and treatment of pollution from point sources under the CWA.
27
This exclusion also appears in the statute, RCRA section 1004(27), 42 U.S.C.
§ 6903(27) (excluding from the definition of solid waste “industrial discharges which are
point sources subject to permits under section 1342 of title 33 * * * .”).
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714 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
enactment of the CWA in 1972; thus, they would not be within the scope
of the above regulatory exclusion, which only applies to discharges actu-
ally subject to NPDES permitting. See In re S. D. Warren, 3 E.A.D. 727,
729 and n.5 (Adm’r 1991) (rejecting argument that corrective action could
not be required because wastewater discharge was subject to NPDES per-
mit; much of the contamination of concern was caused by releases not
authorized by NPDES permit, including releases predating the existence
of the permit). The Region also identifies additional potential sources of
contamination, such as contaminated groundwater to surface waters and
unregulated overland stormwater run-off, see Region’s Response at 10, 16,
that similarly would not be covered by the regulatory exclusion.
Therefore, the existence of these other potential routes of contamination
as contributors to the AOCs would similarly support the Region’s author-
ity to impose corrective action in the instant case. Id.
We recognize that the Agency has enunciated a policy of not “uti-
lizing its * * * corrective action authority to supersede or routinely reeval-
uate” releases permitted under the NPDES and other permitting pro-
grams. Subpart S Proposal, 55 Fed. Reg. at 30808. This clearly evinces
the Agency’s desire to avoid duplication of efforts between regulatory
programs. However, allowing the Region to pursue corrective action
against the AOCs in this instance would not undercut this policy given
that most of the sources of contamination identified by the Region are
not covered by the Facility’s current NPDES permit. Furthermore, there
is no evidence in the administrative record that the AOCs are currently
being addressed under the NPDES program such that any exercise of
corrective action authority would involve an actual encroachment upon
another program’s authority.28 See In re S.D. Warren, 3 E.A.D. at 728–29
(holding that Agency policy of preventing duplication of regulatory pro-
grams is not implicated by contested corrective action since the correc-
tive action addressed discharges that occurred before the facility was
permitted under the NPDES program).
For the reasons stated above, CGE’s argument the AOCs are erro-
neously designated on the basis of their being subject to NPDES permit-
ting is without merit.
28
CGE’s RCRA Part B Permit Application indicates that the Facility’s sole NPDES per-
mit still in existence only regulates stormwater discharges into the Rio Mameyes and
Honduras Creek from the concrete drainage system, see supra Part II.2. Region’s Response,
app. H, at 1–5 (RCRA Part B Permit Application). Thus, the administrative record contains
no indication of any NPDES permit that regulates current discharges from the retired waste
lagoons. With respect to the concrete drainage system, there is no indication in the admin-
istrative record that the current NPDES permit addresses corrective action at the AOCs.
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4. Applying Conditions of SWMUs to AOCs
The final sentence of condition III.A.4. of the Final Permit states that
“[a]ll permit references to, and conditions for SWMUs shall also apply [to
AOCs].”
CGE contends that applying corrective action requirements designed
for SWMUs to the AOCs is clearly erroneous unless the Region establish-
es a factual predicate for the AOCs’ inclusion in the Final Permit. In sup-
port of this argument, the company notes that RCRA only expressly
requires corrective action for SWMUs and not for AOCs, and that EPA’s
authority to designate AOCs under the omnibus provision is limited.
Petition at 10. Because CGE argues that the AOCs are not properly includ-
ed in the permit, it maintains that they should not be subject to SWMU
requirements.
We can easily dispose of CGE’s arguments, since the company con-
cedes that the Region can apply corrective action for SWMUs to proper-
ly designated AOCs. Petition at 10–11. As we have decided above, the
Region properly designated AOC–1, and therefore, the Region can attach
to it the same requirements it has imposed on SWMUs. However, the
Region cannot apply these requirements to AOC–2, which it has not
properly designated, as explained in Part II.B.2. above, unless and until
it is properly designated.
In its Response to Comments, the Region stated that the Final Permit
will require the same factual, investigative, and analytical steps for
AOC–1 as well as for the SWMUs and the results of the investigative and
analytical work will determine the extent, if any, of the corrective action
that may be required for an AOC. Response to Comments at 24. Notably,
neither in its comments nor the Petition does CGE argue that the AOCs
require different investigative or analytical approaches than the SWMUs.
The Region correctly observes in advocating “equal treatment” of AOCs
and SWMUs that the Board has previously decided that “it is within EPA’s
discretion to require the same level of investigation and remediation for
AOCs as SWMUs.” Region’s Response at 18; see, e.g., In re Amoco Oil Co.,
4 E.A.D. 954, 962 (EAB 1993) (denying review of final permit in which
Agency imposed same corrective action requirements for AOCs and
SWMUs because concerns were speculative and corrective action process
was flexible enough “to address any variations that might arise between
AOCs and SWMUs”). We find the Region has properly exercised such dis-
cretion here.
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For the foregoing reasons, the Region’s decision to apply the same
conditions for AOC–1 and SWMUs in the Final Permit does not constitute
clear error or an abuse of discretion, and we accordingly deny review on
this issue. However, the Final Permit erroneously applies “SWMU require-
ments” to AOC–2. The Region can only apply such requirements to
AOC–2 by providing, upon remand, a proper basis for AOC–2’s inclusion
in the Final Permit.
5. Inclusion of Interim Corrective Measures (ICMs) Requirements
Condition III.B.6. of the Final Permit provides for the imposition of
interim corrective measures (“ICMs”) if the Region determines that a
“release of hazardous waste and/or hazardous constituents poses a threat
or potential threat to human health or the environment,” or the Region
“identifies a condition at the Facility where it would be appropriate for
the Permittee to implement ICM(s) to prevent or minimize the further
spread of contamination while long-term remedies at the [F]acility are
pursued.” Final Permit at III–10 to III–11. If the Region determines that
such conditions exist, CGE is required to submit for the Region’s approval
an ICM plan, which analyzes the nature and threat of the contamination
and the effects of delayed action, and then proposes appropriate ICMs.
After approval of the ICM plan, CGE is required to submit an ICM design
plan, which provides a description of the ICM selected by the Region and
a monitoring program to measure the ICM’s effectiveness. Upon the
Region’s approval of the design plan, CGE must implement the plan.
Depending on the results of the monitoring program, the Region can
require CGE to implement “enhancements” to the ICM “if the ICM is not
sufficient to achieve its goal.” Final Permit at III–10 to III–12. Unlike the
implementation of final corrective action measures, which under the Final
Permit require the institution of formal permit modification procedures
(including notice and comment requirements), the imposition of ICMs
under condition III.B.6 of the Final Permit does not require such proce-
dures. Instead, the Final Permit’s compliance schedule includes provi-
sions for the implementation of the ICM provisions by incorporating time-
lines for preparation of an ICM plan and an ICM design plan. See Final
Permit, app. III–C.I.(“Compliance Schedule for Interim Corrective
Measures”).
ICMs play an important role in the Agency corrective action program.
As the Administrator has recognized, the Agency places “strong emphasis
on the use of interim measures to initiate expedited remediation where
necessary at RCRA facilities.” In re B.F. Goodrich Co., 3 E.A.D. 483, 487
(Adm’r 1990); see, e.g., 1996 ANPR, 61 Fed. Reg. at 19,466 (stating that
“[o]ne of EPA’s overriding goals in managing the corrective action program
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 717
is to expedite risk reduction by emphasizing early implementation of
interim actions to control or minimize ongoing threats to human health
or the environment”). Although the parties here acknowledge the
Agency’s authority to require ICMs, they do not agree on the scope of
that authority as it relates to particular elements of condition III.B.6. of
the Final Permit.
a. The Parties’ Arguments on Appropriateness
of ICMs Requirements
CGE asserts that, as written, the permit condition is clearly erroneous
because it fails to provide that “under certain circumstances” the Region
must initiate permit modification procedures to incorporate an ICM into
the Final Permit. Petition at 13. Noting that pursuant to 40 C.F.R. § 270.42,
changes to a corrective action plan require notice and comment, the com-
pany argues that “since interim corrective action measures may become
part of the final corrective action at the Facility,” they should similarly be
subject to notice and comment requirements.29 Id. CGE warns that by
defining so broadly its authority to mandate ICMs, the Region could cir-
cumvent notice and comment requirements in the Final Permit, and thus
blunt the company’s objections to corrective measures. Petition at 14.30
CGE concludes that condition III.B.6. of the Final Permit, by failing to
make ICMs available for comment and review “in any instance,” deprives
the company of due process of law under the U.S. Constitution. To cor-
rect this ostensible defect in the permit condition, the company requests
that the Board instruct the Region to incorporate “procedural notice and
comment requirements for permit modification set forth in 40 C.F.R. sub-
part D for approval of interim corrective measures.” Id. at 14.
In a related argument, CGE contends that the Region has “limited”
authority to impose ICMs under Agency policy and Board precedent.
Citing the Administrator’s decision in In re B.F. Goodrich Co., 3 E.A.D
483, 487 (Adm’r 1990), CGE argues that the use of interim measures
29
Section 270.42 of Title 40 of the Code of Federal Regulations governs permittee-ini-
tiated changes to a permit, which are not at issue here. Section 270.41 of Title 40 governs
Agency-initiated permit changes. Under the latter provision, most Agency-initiated permit
modifications are subject to formal notice and comment procedures set forth at 40 C.F.R.
part 124. 40 C.F.R. § 271.41. However, as explained infra, such procedures do not apply
to the Region’s incorporation of ICMs here because their incorporation would not consti-
tute a permit “modification.”
30
Final Permit Condition III.E.8. requires that the Agency go through notice and com-
ment procedures before selecting the final corrective action for the Facility. Final Permit at
III–30.
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718 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
should be based on the “immediacy and magnitude of the threat
involved.” Petition at 14. Under this criterion, CGE argues that condition
III.B.6. of the Final Permit erroneously fails to distinguish between “truly
emergency situations where a permit modification might unreasonably
delay the interim corrective measure, and those non-emergency situations
where any delays resulting from notice and comment periods provided
for in the permit modification regulation would be acceptable.” Id.
The Region, citing the same Board precedents as CGE, responds that
condition III.B.6. involves a proper exercise of the Agency’s recognized
authority to issue ICMs. The Region states that the Board has accorded
considerable discretion to the Agency to decide when a situation is
“immediate” enough to warrant the imposition of ICMs. Region’s
Response at 20. Countering CGE’s charge that the permit condition grants
the Region unfettered power to impose ICMs, the Region asserts that
numerous “limiting conditions” and “factors” in the Final Permit suffi-
ciently circumscribe the Region’s authority to impose such measures,
thereby assuring that “circumstances for the invocation of interim meas-
ures are limited to situations that require prompt attention.” 31 Id. The
31
The Region refers to “limiting conditions” in III.B.6. that allow the Region to initiate
ICMs either (1) upon determining that “a release or potential release of * * * hazardous
waste and/or hazardous conditions * * * poses a threat or potential threat to human health
or the environment” or (2) upon “identif[ying] a condition at the Facility where it would
be appropriate for the Permittee to implement ICMs to prevent or minimize the further
spread of contamination while long-term remedies at the facility are pursued * * *.” Final
Permit at III–10 to III–11. Condition III.B.6. also includes nine factors which the Agency
may consider in determining the need for interim measures:
(i) time required to develop and implement a final remedy;
(ii) actual and potential exposure of human and environmental receptors;
(iii) actual and potential contamination of drinking water supplies and sensi-
tive ecosystems;
(iv) he potential for further degradation of the medium absent interim measures;
(v) presence of hazardous waste, including hazardous constituents, in con-
tainers that may pose a threat of release;
(vi) presence and concentration of hazardous waste, including hazardous con-
stituents, in soils that have the potential to migrate to ground water or surface
water;
(vii) weather conditions that may affect the current levels of contamination;
(viii) risks of fire, explosion, or potential exposure to hazardous waste, includ-
ing hazardous constituents, as a result of an accident or failure of container or
handling system; and
(ix) other situations that may pose threats to human health and the environment.
Final Permit at III–11.
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 719
Region also avers that the imposition of ICMs is geared to the “unique
facts of the site conditions” at the Facility, which include a contaminated
groundwater plume in close proximity to a river that serves as a drinking
water source. Id. at 19. The Region states that “the river directly adjoins
the facility boundary at the point where lagoons are located, and direct-
ly downgradient from the presumed source of the already identified
groundwater plume, which is to be investigated and delineated under the
Permit.” Id. The Region further notes that if the contamination reaches
the point where it will directly affect the river, “there may be a com-
pelling need to act quickly to address the plume’s spread before irrepara-
ble harm occurs.” In such circumstances, the Region must be able to
respond quickly without having to initiate formal modification steps.
Region’s Response at 20. Even without access to permit modification pro-
cedures, the Region observes, CGE will have “alternative recourse” to the
permit’s dispute resolution provision in order to lodge any objection to
any ICM requirements. See id. at 21; Final Permit at I–13, condition I.M.
b. The Imposition of ICMs Requirements is Appropriate
After examining the two parties’ arguments, we find that the Region’s
imposition of ICM requirements through condition III.B.6. of the Final
Permit is consistent with Agency policy and applicable precedent regard-
ing the appropriate use of ICMs when threats to human health and the
environment call for prompt corrective measures. Agency policy guid-
ance states that the “Regional Administrator [“RA”] will consider the
immediacy and magnitude of the threat to human health or the environ-
ment as primary factors in determining whether an interim measure(s) is
required,” and suggests that one factor the RA can consider in making
that determination is “the time required to develop and implement a final
remedy * * *.” Subpart S Proposal, 55 Fed. Reg. at 30,839. In B.F.
Goodrich, a case interpreting Agency ICM policy and cited by both par-
ties, the Administrator rejected a petitioner’s argument that ICMs imposed
by the Agency were clearly erroneous because they did not address an
“immediate” or imminent threat. Instead, recalling the language of
Subpart S regarding ICMs, the Administrator found that the “requisite
degree of immediacy that justifies such measures depends in part on the
amount of time needed to establish and implement permanent corrective
action measures.” The Administrator upheld the contested ICMs, finding
that the Region had properly considered the magnitude and immediacy
of the threat in deciding whether to require interim measures. B.F.
Goodrich, 3 E.A.D. at 487.
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720 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
Consistent with the holding in B.F. Goodrich that the Agency has
considerable discretion to decide when ICMs are warranted, we find
nothing in condition III.B.6., as written, that will prevent the Region from
making an appropriate judgment about whether ICMs are justified. As fur-
ther evidence that this permit condition does not depart from Agency
policy on ICMs, we note that the “limiting language” and “factors” that
the Region states will guide its decision to employ ICMs, supra note 31,
are taken verbatim from the factors that Subpart S recommends the
Regional Director consider in deciding whether to implement ICMs. See
55 Fed. Reg. at 30,839. Additionally, we note that the Final Permit also
requires an analysis of the effects of delayed action as one component of
an ICM design plan. Final Permit at III–10 to III–11.
The ICM provision here is a general one,32 and it remains to be seen
whether the Region will in fact make a determination that an ICM plan is
even required. Thus, the specific concerns that CGE has articulated are
wholly speculative. There simply is no indication that if an ICM is
imposed, the Region would act inappropriately as urged by GE. To the
contrary, there are assurances that the Region will, as it asserts, confine
its use of ICMs to situations calling for “prompt action,” and not use such
measures as a covert way to avoid formal permit modification proce-
dures, which Final Permit condition III.E.8. requires that the Region insti-
tute when imposing final corrective action measures.
First, particular characteristics of this site—an identified groundwater
plume and the property’s direct proximity to a known drinking water
source—give credence to the Region’s statements that the need for using
ICMs would arise in situations, “such as the groundwater plume directly
approaching the river,” that by nature require prompt and immediate
attention. See Region’s Response at 19–20. Second, in its Response to
Comments, the Region states that “if based on the Corrective Measures
Study, an ICM already in progress, or previously implemented, is deter-
mined to constitute the Corrective Measure for final site clean-up, this
determination would then require a permit modification pursuant to 40
C.F.R. § 270.41 and § 270.42, as required under Section III.E.8. of the
Permit.” We adopt this assurance as an authoritative reading of the Final
Permit that is binding on the Region. See, e.g., In re Amoco Oil Co., 4
E.A.D. 954, 981 (EAB 1993); In re Austin Powder Co., 6 E.A.D. 713, 717
32
We find nothing erroneous in the inclusion of such a general provision under the
circumstances of this case. See In re General Motors Corp., Delco Moraine Div., 4 E.A.D.
334, 347 (EAB 1992) (rejecting challenge to ICM on the grounds that the provision exceed-
ed the Region’s authority; permit made clear no such measures may be required unless the
Region determines they are necessary to protect human health or the environment; provi-
sion remanded on other grounds).
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 721
(EAB 1997); see also Region’s Response to Comments at 94. In light of this
and other safeguards in the Final Permit that will guard against improp-
er use of the Region’s ICM authority, CGE’s doubts about the Region’s
good faith implementation of this permit provision do not provide a basis
for the Board’s review of the Final Permit. As we have previously held,
“the role of the Board is to determine whether the permit was appropri-
ately issued. The Board has no oversight responsibility for the imple-
mentation of a validly issued permit.” In re General Electric Co., 4 E.A.D.
358, 370 (EAB 1992).
c. Notice and Comment Permit Modification
Procedures are Not Required
Furthermore, we find that the Region is not legally required to insti-
tute formal permit modification, including notice and comment require-
ments, when imposing ICMs in the Final Permit. In In re General Electric
Co., 4 E.A.D. 615, 624–25 n.9 (EAB 1993), we held that a revision or
incorporation by the Region of an interim submission required under the
original terms of a permit will not constitute a modification of the permit
subject to the formal modification procedures at 40 C.F.R. § 270.41 and 40
C.F.R. part 124. Accord In re Allied-Signal, Inc., 4 E.A.D. at 753. In
General Electric, among those interim submissions we found did not war-
rant formal modification procedures were submissions for “interim meas-
ures” addressing imminent threats similar to the submissions CGE may be
required to make in implementing ICMs. In General Electric, we stated
that a revision or incorporation of an interim submission does not mod-
ify a permit, but rather fulfills a permit’s preexisting terms, because the
submission of such information is contemplated within the permit itself.
General Electric, 4 E.A.D. at 624. Similarly, the Region’s approval and
revision of CGE’s submissions under condition III.B.6. (the “ICM plan”
and “ICM design plan,” see supra), would simply fulfill the terms of the
original permit and would therefore not require formal modification pro-
cedures. Id. As in General Electric, the Final Permit here contains a pro-
vision by which “plans, reports, and schedules” required by the permit
are automatically incorporated into the Final Permit upon their approval
by the Region. See Final Permit at I–2, Permit Condition I.D.33 Thus, as we
held in General Electric, the change in the permit to incorporate the new
33
Final Permit Condition I.D. provides as follows:
Unless otherwise specified, all plans, reports and schedules required by the terms
of this permit are incorporated into this permit, upon approval by EPA. Any non-
compliance with such approved studies, reports or schedules shall constitute a
violation of this permit.
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722 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
plans occurs automatically through operation of the permit itself and thus
does not constitute the kind of “new information” contemplated in sec-
tion 270.41 necessary to trigger application of notice and comment pro-
cedures under 40 C.F.R. part 124.34 General Electric, 4 E.A.D. at 624; see
also In re General Electric Co., 4 E.A.D. 358, 366 & n.7 (EAB 1992) (hold-
ing that the rationale stated in In re W.R. Grace & Co., 3 E.A.D. 538, 539
(Adm’r 1991) that Regional revision of interim submissions does not con-
flict with Agency’s permit modification rules “applies with equal force to
interim submittals relating to interim measures”).35
d. The Final Permit Provides Sufficient Due Process
Finally, we find that the dispute resolution provision in the Final
Permit provides the company sufficient due process in the event it dis-
putes an ICM. In fact, the dispute resolution procedures described in
Final Permit condition I.M. (applying to all “disputes or differences of
opinion [that] may arise in connection with [the Final Permit]”) satisfy all
the due process requirements we prescribed in General Electric for situ-
ations involving contested interim submissions. See General Electric,
4 E.A.D. at 629–40.
In General Electric, supra, we determined that the Region’s incorpo-
ration of revised interim submissions as an enforceable part of permit did
entitle the permittee to due process protection under the Fifth
Amendment of the U.S. Constitution. In particular, due process required
giving the permittee notice and an opportunity for a “hearing,” i.e., an
opportunity to dispute the provision. 4 E.A.D. at 627 (citing Mathews v.
Eldridge, 424 U.S. 319, 333 (1976); Cleveland Board of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985)). In considering what particular
34
Section 270.41 of Title 40 of the Code of Federal Regulations specifies that “infor-
mation” can be a cause for modification of a permit if the Regional Director or State
Administrator receives information that “was not available at the time of permit issuance
(other than revised regulations, guidance, or test methods) and would have justified the
application of different permit conditions at the time of issuance.” 40 C.F.R. § 270.41(a)(2).
35
We recognize that the ICM plans in the Final Permit are more general than the inter-
im submissions at issue in General Electric, supra, and that the requirement to submit the
ICM plans is contingent upon the Region’s determination that they are appropriate. See
Final Permit at III–10 to III–11. Nevertheless, the reasoning we adopted in General Electric,
supra, still applies here: the “ICM plan” and “ICM design plan” that CGE may be required
to submit under the Final Permit would not yield “new information” outside the contem-
plation of the Permit, therefore requiring notice and comment procedures; rather, the plans
would fulfill provisions in the original permit designed to “make obligations that are
already in the permit more specific.” General Electric, 4 E.A.D. at 624.
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 723
process was due in that case, we found that procedures in which the per-
mittee would have the opportunity to meet with Agency officials, submit
written comments to the regional decisionmaker, and receive a response
from the Region stating the reasons for its final decision would satisfy due
process.36
The dispute resolution provision in the Final Permit contains all the
necessary features we deemed sufficient in General Electric to protect the
due process rights of permittees required to comply with the terms of a
revised interim submission under a final permit. The dispute resolution
provision here would enable CGE to meet informally with Regional staff,
to submit a written statement explaining the points of disagreement with
the terms of any ICM, and to receive a final written decision by the Region
setting forth its reasons for the decision. Moreover, the provision contains
two features that we recommended as a matter of sound policy in General
Electric: first, the provision is included in the Final Permit itself, and sec-
ond, it provides that the Region’s decision and statement of reasons will
be made by the same official who issued the Final Permit.37, 38 Id.
36
In deciding which particular procedural safeguards were necessary to protect the
permittee’s due process rights in General Electric, we followed the analysis developed by
the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews v. Eldridge offered
the following three-part test for determining what process is due in a particular context:
(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 safe-
guards; and
(3) the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.
General Electric, 4 E.A.D. at 632 (citing Mathews v. Eldridge, 424 U.S. at 335).
37
According to the Final Permit’s dispute resolution provision, the Director, Division
of Environmental Protection and Planning, EPA Region II, shall make final decision in writ-
ing on the dispute in question. Final Permit at I–14. This is the same official who issued
the Final Permit. See Final Permit at 3.
38
In General Electric, we recognized due process “may require the Regions to offer
more procedural protection than is afforded by the dispute resolution procedures” in cases
“involving extraordinarily high financial stakes.” General Electric, 4 E.A.D. at 633.
Accordingly, we recognize that although the dispute resolution provision in the Final
Permit will offer sufficient due process safeguards in most circumstances, these safeguards
may not be sufficient in exceptional circumstances. Since any particular instance in which
the due process protections may be insufficient is purely speculative, we decline to grant
review of the Final Permit on this basis.
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724 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
For the foregoing reasons, the Region has committed no clear error,
abuse of discretion, or denial of due process by including in the Final
Permit a provision for imposing ICMs that does not provide for formal per-
mit modification procedures, including notice and comment requirements.
6. Inclusion of 6 SWMUs
Conditions III.A.3. and III.A.5. of the Final Permit require CGE to
undertake a Phase I RCRA Facility Investigation (“RFI”)39 for eight SWMUs
and two AOCs 40 identified as a result of the 1986 RFA. In its Petition, CGE
challenges the Region’s RFI requirement for six of the SWMUs. These
include: SWMU #2 (Lagoon Waste Pile); SWMU #4 (Electroplating Area
Sump); SWMU #6 (Parking Lot Sump); SWMU #10 (Parking Lot Waste
Pile); SWMU #11; (Septic Tanks); and SWMU #13 (Pump House Area
Sump). Five of these SWMUs—#2, #4, #6, #10, and #13—were identified
in the RFA to be associated with the CGE’s electroplating operations.
SWMU #11 received sanitary wastes from the Facility.41 RFA at 4–8.
Following recommendations contained in the RFA, the Final Permit,
under the Phase I RFI, requires CGE to investigate surface and subsurface
soils at the SWMUs. Final Permit at III–8.
CGE contends that the Region’s imposition of Phase I RFI require-
ments on the six SWMUs is clearly erroneous and beyond its authority
because of the low or nonexistent risks the units pose to human health
and the environment. Petition at 17, 22. In support of this position, the
company notes the Region has disregarded the previous remediation it
39
The RFI is the step of the corrective action process which follows the RFA. An RFI
is undertaken when the RFA identifies actual or potential releases from an SWMU. The pur-
pose of an RFI is to assess the identified releases by characterizing their nature, extent, and
rate of migration. See In re American Cyanamid Co., 3 E.A.D. 648, 658 (Adm’r 1991);
Subpart S Proposal, 55 Fed. Reg. at 30,801–02; U.S. EPA, Office of Solid Waste and
Emergency Response, National RCRA Corrective Action Strategy at 9–15 (1986). The Region
inserted the “Phase I RFI” in the Final Permit, replacing language in the draft permit that
simply required CGE to perform an “RFI” on the 8 SWMUs. A “Phase I” RFI differs from a
full RFI in the extent and degree of information required. The purpose of the “Phase I” RFI
is to confirm the existence of releases that could potentially have an impact on human
health and the environment. See Response to Comments at 91–92; 1996 ANPR, 61 Fed. Reg.
at 19,443 (describing “Phase I” RFIs). Under the Final Permit, a full RFI would only be con-
ducted if such releases are confirmed at the “Phase I” RFI. Final Permit at III–3.
40
The Region’s authority to impose corrective action requirements on these AOCs has
been previously discussed in supra Parts II.B.2. and II.B.3.
41
These SWMUs are depicted in a “PPD (Precision Protective Devices, Inc.) Facility
Layout and Wastewater Flow” map included in the Final Permit. Final Permit at III–7.
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 725
performed at most of the SWMUs in question, in particular work carried
out under a “SWMUs Clean-up Workplan” initiated by the company in
1989 subsequent to the RFA. Id.; Region’s Response, app. H at 1–2 (RCRA
Part B Permit Application). The company asserts that closure activities it
conducted at SWMUs #2, #4, #6, and #13 resulted in concentrations of
contaminants identified in the RFA below the “clean-closure” criteria
applied to the waste lagoons under Module IV of the Final Permit. CGE
further claims that concentrations of various hazardous constituents at the
SWMUs were measured during the RFA and after closure to be below the
Agency’s “Region III residential risk based criteria.” Petition at 14–22.
In addition, CGE maintains the RFA mistakenly identified two of the
SWMUs (#10 and #11) as being “SWMUs.” The company, referring to
Figure 1 of the January 29, 1985 report entitled “Sampling and Analysis
of Soils in Plant Area Soils,” observes that the figure presents SWMU #10
(Parking Lot Waste Pile) as a “sampling area, not a disposal area.” Petition
at 20; see Region’s Response, app. K, Fig. 1 (Sampling and Analysis of
Plant Area Soils, Precision Protective Devices, Inc. (Jan. 29, 1985)). Thus,
CGE contends that since the “SWMU” was not involved in “disposal,” it
was not properly designated as a “SWMU.” Id. The company further
asserts that SWMU #11 (Septic Tanks) was not properly identified as a
“SWMU” because “the septic tanks were only connected to sanitary facil-
ities at the plant; there is no indication that these tanks ever received haz-
ardous wastes.” Petition at 21.
Claiming that the SWMUs in question do not merit further investiga-
tion as potential threats to human health and the environment, CGE
requests the Board to direct the Regional Director to delete the six
SWMUs from the permit and place them instead on the Final Permit’s “no
further action” list. Petition at 14–22.
In its earlier Response to Comments, the Region responded to virtu-
ally identical assertions by the company. At that time, the Region
acknowledged the extent of CGE’s previous remediation work, but
explained that CGE’s “1989 SWMUs Clean-up Work Plan” was never
approved by EPA, nor has the Permittee ever submitted to EPA a com-
plete and acceptable workplan for a full investigation, and clean-up if
warranted, of all SWMUs at the facility.” Response to Comments at 45.
The Region also stated that the “prior data [on CGE’s remediation work
it submitted to the Region] was not analyzed with appropriate EPA
methodologies, nor supported with adequate quality control/quality
assurance data, nor validated according to EPA requirements.” Id. at 68.
In addition the Region noted that the remediation work that the compa-
ny performed on three of the electroplating sump SWMUs (#4, #6, and
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726 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
#13) was not comprehensive because it did not include characterization
of “the subsurface soils underlying these structures * * * for possible
groundwater impacts.” Id. at 69.
In its Response to Comments, the Region pointed out that there were
exceedances of the Agency’s “soil screening levels” for possible impacts
to groundwater at all of the contested SWMUs. For example, the RFA
sampling revealed exceedances of such soil screening levels for cadmi-
um and chromium at SWMU #2; for cadmium and chromium at SWMU
#10; and for cadmium at SWMU #11. The exceedances occurred on
almost all soil samples taken at these SWMUs. Response to Comments at
68–71. Such exceedances also occurred in “bore hole” samples that CGE
took of soils underneath the SWMUs where the company had performed
previous remediation work. The sampling, which occurred along bore
intervals, revealed exceedances for chromium, with the highest levels of
chromium found at the deepest levels. Id; see also Region’s Response,
app. H, Tbl. 9–2 (RCRA Part B Permit Application). Based on these
exceedances, the Region explained that it had “determined” that the
SWMUs could be “acting as sources for on-going groundwater contami-
nation, and need to be more fully characterized * * *.” Response to
Comments at 68–71.
In its Response to Comments, the Region also countered CGE’s asser-
tions that SWMUs #10 and #11 were not properly included in the Final
Permit. Although the Region agreed that “Figure 1” (cited by CGE, supra,
in support of its claim that SWMU #11 (Parking Lot Waste Pile) was a
sampling area) indeed bore the title “Sampling and Analysis of Plant Area
Soils,” the Region observed that “Figure 1” itself “showed two areas south
and west of the parking lot, labeled, ‘Sludge Disposal Sampling’ areas.”
Response to Comments at 79; see Region’s Response, app. K, fig. 1
(Sampling and Analysis of Plant Area Soils, Precision Protective Devices,
Inc. (Jan. 29, 1985)). The Region also refuted CGE’s contention that
SWMU #11 (Septic Tanks) did not receive any hazardous wastes, noting
that an RFA sludge sample taken from one of the septic tanks revealed
elevated levels of cadmium and chromium, which in the case of cadmi-
um (8 mg/kg) exceeded the Agency’s soil screening level for possible
groundwater impacts (6 mg/kg). Response to Comments at 71. Based on
the results, concluded the Region, “hazardous wastes or hazardous con-
stituents were likely disposed in the septic tank at some point.”
In its Petition, CGE merely restates its earlier objection to the Permit
without explaining why any of the Region’s above responses were clear-
ly erroneous. Thus, CGE provides no substantive response on the
Region’s comments regarding deficiencies in the company’s previous
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CARIBE GENERAL ELECTRIC PRODUCTS, INC. 727
remediation work, reported exceedances of soil screening criteria at the
SWMUs, and the proper inclusion of the contested areas as SWMUs.
CGE’s failure to respond is especially significant with respect to the
Region’s reports of exceedances of soil screening levels for possible
groundwater impacts. The company’s silence on this matter strikes us as
consequential because of the history of groundwater contamination at the
site as well as the strong emphasis the RFI places on identifying and
addressing the migration of contaminants in groundwater. The Region’s
contentions with respect to these screening levels form the whole under-
pinning for the RFI. Rather than challenge the validity of these criteria,
CGE, in its appeal briefs, simply resurrects its earlier comments that since
the SWMU sampling, with few exceptions, did not exceed residential risk-
based and clean-closure criteria, the SWMUs do not pose risks to human
health and the environment warranting further investigation.
The Region, in its Response, also disputes the company’s reliance on
the residential risk-based and clean-closure criteria. It maintains that the
residential-risk based concentrations are not “an appropriate measure” at
the SWMUs because “the residential concentration levels are for the soil
ingestion pathway for human health impacts from contamination, where-
as at the CGE facility the most likely pathway for human health impacts
from contamination is from groundwater.” Region’s Response at 22. The
Region also discounts the use in this context of “clean-closure criteria” 42
because “[these] criteria * * * were never intended for site-wide use or as
a measure of whether or not there should be investigation to determine if
a release or releases may have occurred. The context for a closure plan is
completely different in that the [lagoons] are subject to a minimum of 3
years of groundwater monitoring, and, if warranted, to up to 30 years of
post-closure monitoring.” Id. at 22–23. The explanation that the Region
provides in support of using soil screening criteria as a measure of human
health and environmental risk strikes us as reasonable and grounded in
the specific circumstances of the site. It warrants on CGE’s part a site-spe-
cific argument in favor of the residential risk-based and clean-closure cri-
teria the company favors, which CGE here failed to provide.
As we have stated before in the context of permit reviews, a peti-
tioner may not simply reiterate its previous objections to a draft permit.
The petitioner must demonstrate why the Region’s response to those
objections is clearly erroneous. Because CGE, in its Petition, has simply
repeated its earlier argument opposing investigation of the above SWMUs
42
The Final Permit applies the clean-closure criteria to the two waste lagoons in
Module IV of the Final Permit.
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728 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
through an RFI without showing how the Region’s responses to those
arguments were clearly erroneous, we deny review on this issue. In re
Envotech, LCP, 6 E.A.D. 260, 268 (EAB 1996) (quoting In re LCP Chem.,
4 E.A.D. 661, 664 (EAB 1993)); see also In re Austin Powder Co., 6 E.A.D.
713, 721 (EAB 1997) (rejecting review of RCRA permit on particular issue
because petitioner simply reiterated previous objections to a draft permit).
III. CONCLUSION
The Final Permit is remanded, and the Region is directed to reopen
the permit proceedings for the purpose of establishing a proper basis for
the inclusion of A0C–2 as described above, or in the alternative, to reis-
sue the Permit to CGE without AOC–2.43 The Region must accept and
respond to public comment on its decision.
Any party who participates in the remand process on this issue and
is not satisfied with the Region’s decision on remand may file an appeal
(limited to this issue) with the Board pursuant to 40 C.F.R. § 124.19. On
the other issues raised by CGE, review is denied for the reasons set
forth above.
So ordered.
43
Although 40 C.F.R. § 124.19 contemplates that additional briefing typically will be
submitted 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 Ash Grove Cement Co.,
7 E.A.D. 387, 433 (EAB 1997).
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