UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SEP 2 3 £S3
MEMORANDUM OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT: RCRA Permit Appeals
FROM: Joseph S. Carra, Director^,-^/^ ^ *f. S<# i if*- -'
Permits and State Progrn^ T^fvlsion (0S-340)
i/
TO: RCRA Branch Chiefs
Regions I - X
Attached is the first in a series of documents being
developed by my office in order to summarize information
on RCRA permit appeals and to provide guidance on the permit
appeals process. Included today are three documents: (1) an
index of RCRA permit appeals; (2) permit appeal fact sheets for
individual facilities; and (3) a summary matrix of RCRA permit
appeal issues.
Attachment 1 is the index of RCRA Permit Appeals which
identifies all RCRA permit appeals filed from January 1, 1986
to August 1, 1988. The January 1, 1986 start date was chosen
because it reflects the earliest active permit appeal
(petition). During this time 39 appeals were filed with the
Administrator. In the future, we will also provide you with a
document which will identify the status of each of these permit
appeals.
Attachment 2 is a compilation of fact sheets on those RCRA
permit appeals which are currently active or which have been
recently settled. These fact sheets were designed to summarize
the issues that were appealed and to present information in a
format useful to the Regions. We anticipate that the fact
sheets will serve as vehicles for communications and foster
interaction among Regions in their efforts to resolve the
appeals. The attached fact sheets, which were distributed in
draft in New Orleans at the Corrective Action Workshop on
June 13, 1988, reflect all Regional comments received by the
Assistance Branch.
-------
-2-
Finally, Attachment 3 is a matrix of RCRA permit appeal
issues as summarized in the fact sheets. The matrix provides a
"quick look" at the issues presented in the fact sheets. You
will note that the majority of the RCRA permit appeals are
concerned with corrective action issues (e.g., RFI conditions,
definition of solid waste management units (SWMUs) and dispute
resolution).
I hope this information and future Permits and State
Programs Division (PSPD) efforts will provide the information,
guidance and support necessary to help expedite efforts in
addressing these appeals. In addition to information and
guidance, PSPD is also available for direct assistance in the
management of specific permit appeals. Please contact Jim
Michael, Chief, Disposal and Remediation Section, Assistance
Branch at FTS 382-2231 with any questions you may have on RCRA
permit appeals.
Attachments
cc: RCRA Permit Section Chiefs
Regions I-X
ORC RCRA Contacts
Regions I-X
Suzanne Rudzinski
Matt Hale
George Garland
Elizabeth Cotsworth
Frank McAlister
Dave Fagan
Fred Chanania, OGC
Tim Dowling, CJO
Jackie Tenusak, OWPE
DRS Staff
ATSS Staff
-------
ATTACHMENT 3
SUMMARY OF RCRA PERMIT APPEAL ISSUES
8/3(/88
-------
Corrective Action Issues
Other RCRA Issues
Facility and
Appeal Humber
RFI Conditions
Too
Vanue
Hot
Justified
Technically
Inappropriate
Def. of
SWU
Du*
Process
Other Corrective Action Issues
Procedural Level of Joint
lasuea Detail Perm! ttinn
Miscellaneous Other
DuPont III
86-1
Allied-Baltimore III
86-*
American Cyanamid- III
Willow Island
86-4A
Texaco Research II
Center Beacon
86-5
Vulcan Materials VII
87-1
Heritage Environ.
Services
87-4
Allied-Metropolis V
87-6
Sandoz Chemicals IV
87-7
3M
87-8
Mobay-Kansas City VII
87-9
(compliance schedule)
(previous lubmittal of remedi-
al investigation, risk assess-
ment, gum plans; financial
assurance demonstration)
(recordkeeping and
reporting)
(use of existing data and
reports; compliance schedule;
subnittal of bi-monthly
progress reports)
(sampling, requirements)
(corrective action for newly-
discovered SWflls)
(DPI work plan provisions;
NPDES discharges; definition
of "facility")
(definition of facility
boundaries; other
specific conditions)
(permitting of inciner-
ators under TSCA; other
PCB-related issues;
storage of off-site
wastes; clarification of
waste streams)
(inspection of and liquid
removal from secondary
leachate collection
system; soil thickness of
final cover)
(surface impoundment
requirements)
(duration of permit;
definition of "solid
waste")
Mobay-Bushy Park
87-10
IV
8/30/88
-------
Corrective Action Issues
Other RCRA Issues
RFI Conditiona
Facility and Too Not Technically Def. of Due Procedural Level of Joint
Appeal Number Region Vague Justified Inappropriate SWU Process Other Corrective Action Issues Issues Detail Permitting
Miscellaneous Other
Erieway
87-11
CHtt-Emelle
87-12
IV
(compliance with Part 2(4
standards)
(compliance with RCRA and
NEFA; specific unit
design and operating
standards)
Boechst Celanese
87-13
IV
(definition of "contamination")
Ecolotec
87-14
(facility location;
ground-water monitoring
and sampling require-
ments )
Interstate Lead
87-16
Pacific Gas &
Electric
87-18
IV
IX
(parameters for gwo; ground-
water terminology)
(compliance with
liability requirements)
(surface impoundment
retrofitting)
Shell Oil
87-19
Nona an to
Agricultural
88-1
Utah Power &
Light
88-2
NovaJo Refining
88-3
CHM-Kettleman
Hills
88-4
VI
VI
VI
IX
(use of term "disposal areas;"
format of draft report; detail
in RFI work plan)
(submittal of preliminary
report)
(surface impoundment
retrofitting variance)
(force majeure provision;
non-compliance situa-
tions; incorporation of
applicable standards;
ground-water monitoring)
(closure schedule; vague
language; use of MCLs)
CID
88-5
(off-site monitoring; trigger
levels)
(manifests; testing waste
shipments)
8/30/88
-------
SOWUB Of BtBa IHBO7 AEIEAL ISSUES (GQHT'D)
Corrective Action Issues
Other RCRA Issues
RFI Conditions
Facility and < Too Hot Technically Def. of Due
Appeal Humber Region Vague Justified Inappropriate SHMU Process Other Corrective Action Issues
Procedural Level of Joint
Issues Detail Permitting
Miscellaneous Other
Chem-Security
Systems
68-6
(modification of cost estimates)
("harmless" condition;
record of wastes")
Eli Lilly
88-7
Waste Tech
Services
88-8
Pearl Harbor
Public Works
Center
88-9
Amerada Hess
(Port Reading)
88-10
American Cyanamid-
Hestwego
88-11
L-TEC Company
88-12
USX Corporation
88-13
Environ. Waste
Control
88-14
II
VI
IV
(financial, assurance)
(storage for recovery of
Part 268-restricted
wastes; waiver from
storage prohibition;
storage of PCBs)
(level and effectiveness
of monitoring; health
effects/hazards associ-
ated with current
facility operations and
demonstration; hazardous
waste storage, transport,
and volume; insurance;
conflict of interest)
(location; additional
safety considerations)
(legal name of permittee)
(submittal of plans; gw
protection standards;
closure of surface
impoundments; tank treat-
ment)
(permit denial)
(bases for permit denial)
8/30/88
-------
SUMABX OF BOA IQBOI APPEAL ISSUES (CQBI'D)
Corrective Action Issues
Other RCRA Issues
RFI Conditions
Facility and
Appeal Number
Region
Too Hot Technically
Vague Justified Inappropriate
Def. of Due
SVtfll Process
Other Corrective Action Issues
Procedural
Issues
Level of
Detail
Joint
Permitting
Miscellaneous Other
Ross Incineration
Services
88-15
CHM-Emelle
88-16
IV
(storage or treatment at
new or modified units;
incinerator test perfor-
mance requirements;
emission plans; typo-
graphical error)
(omnibus provision;
carbon monoxide limita-
tions; feed rate of
metals)
8/30/88
-------
ATTACHMENT 1
INDEX OF RCfiA PERMIT APPEALS
(1/1/86 - 8/1/88)
8/30/88
-------
ATTACHMENT 1
INDEX OF RCRA PERMIT APPEALS
(1/1/86 - 8/1/88)
1. E.I. DuPont, Martinsville, Virginia
RCRA Appeal No. 86-1
2. Solvents Recovery Service of New England, Inc., Southington, Connecticut
RCRA Appeal No. 86-2
3. Monsanto Company, Anniston, Alabama
RCRA Appeal No. 86-3
4. Allied Corporation, Baltimore, Maryland
RCRA Appeal No. 86-4
5. American Cyanamid Company, Willow Island, West Virginia
RCRA Appeal No. 86-4A
6. Texaco Inc., Texaco Research Center Beacon, Glenham, New York
RCRA Appeal No. 86-5
7. Vulcan Materials Company, Wichita, Kansas
RCRA Appeal No. 87-1
8. Ogden Environmental Services, Inc., San Diego, California
RCRA Appeal No. 87-3
9. Heritage Environmental Services, Putnam County, Indiana
RCRA Appeal No. 87-4
10. Highway 36 Land Development Corporation, Adams County, Colorado
RCRA Appeal No. 87-5
11. Allied Corporation, Metropolis, Illinois
RCRA Appeal No. 87-6
12. Sandoz Chemicals Corporation, Mt. Holly, North Carolina
RCRA Appeal No. 87-7
13. 3M Company, Cordova, Illinois
RCRA Appeal No. 87-8
14. Mobay Corporation, Kansas City, Missouri
RCRA Appeal No. 87-9
15. Mobay Corporation, Bushy Park, South Carolina
RCRA Appeal No. 87-10
16. Erieway, Inc., Bedford, Ohio
RCRA Appeal No. 87-11
8/30/88
-------
INDEX OF RCRA PERMIT APPEALS (CONT'D)
(1/1/86 - 8/1/88)
17. Chemical Waste Management Inc., Emelle, Alabama
RCRA Appeal No. 87-12
18. Hoechst Celanese Corporation, Greer, South Carolina
RCRA Appeal No. 87-13
19. Ecolotec, Inc., Dayton, Ohio
RCRA Appeal No. 87-14
20. Interstate Lead Company, Inc., Leeds, Alabama
RCRA Appeal No. 87-16
21. Ashland Oil Company, Inc., (Calgon Carbon Corporation), South Point, Ohio
RCRA Appeal No. 87-17
22. Pacific Gas & Electric Company, Pittsburg, California
RCRA Appeal No. 87-18
23. Shell Oil Company, Deer Park, Texas
RCRA Appeal No. 87-19
24, Monsanto Agricultural Company, Luling, Louisiana
RCRA Appeal No. 88-1
25. Utah Power & Light, Idaho Falls, Idaho
RCRA Appeal No. 88-2
26. Navajo Refining Company, Artesia, New Mexico
RCRA Appeal No. 88-3
27. Chemical Waste Management Inc., Kettleman Hills, California
RCRA Appeal No. 88-4
28. CID, Calumet City, Illinois
RCRA Appeal No. 88-5
29. Chem-Security Systems, Inc., Arlington, Oregon
RCRA Appeal No. 88-6
30. Eli Lilly and Co., Tippecanoe Laboratories, Shadeland, Indiana
RCRA Appeal No. 88-7
31. Waste Tech Services and BP Chemicals America, Inc., Lima, Ohio
RCRA Appeal No. 88-8
8/30/88
-------
INDEX OF RCRA PERMIT APPEALS (CONT'D)
(1/1/86 - 8/1/88)
32. Pearl Harbor Public Works Center, Mahalapa, Hawaii
RCRA Appeal No. 88-9
33. Amerada Hess, Port Reading, New Jersey
RCRA Appeal No. 88-10
34. American Cyanamid Company, Westwego, Louisiana
RCRA Appeal No. 88-11
35. L-TEC Company, d/b/a L-TEC Welding and Cutting Systems,
Florence, South Carolina
RCRA Appeal No. 88-12
36. USX Corporation, Gary, Indiana
RCRA Appeal No. 88-13
37. Environmental Waste Control, Inc., d/b/a Four County Landfill,
Fulton County, Indiana
RCRA Appeal No. 88-14
38. Ross Incineration Services, Inc., Grafton, Ohio
RCRA Appeal No. 88-15
39. Chemical Waste Management, Inc., Emelle, Alabama
RCRA Appeal No. 88-16
8/30/88
-------
ATTACHMENT 2
RCRA PERMIT APPEAL FACT SHEETS
8/30/88
-------
ATTACHMENT 2
INDEX OF RCRA PERMIT APPEAL FACT SHEETS
1. E.I. DuPont, Martinsville, Virginia
RCRA Appeal No. 86-1
2. Allied Corporation, Baltimore, Maryland
RCRA Appeal No. 86-4
3. American Cyanamid Company, Willow Island, West Virginia
RCRA Appeal No. 86-4A
5. Texaco Inc., Texaco Research Center Beacon, Glenham, New York
RCRA Appeal No. 86-5
6. Vulcan Materials Company, Wichita, Kansas
RCRA Appeal No. 87-1
7. Heritage Environmental Services, Putnam County, Indiana
RCRA Appeal No. 87-4
8. Allied Corporation, Metropolis, Illinois
RCRA Appeal No. 87-6
9. Sandoz Chemicals Corporation, Mt. Holly, North Carolina
RCRA Appeal No. 87-7
10. 3M Company, Cordova, Illinois
RCRA Appeal No. 87-8
11. Mobay Corporation, Kansas City, Missouri
RCRA Appeal No. 87-9
12. Mobay Corporation, Bushy Park, South Carolina
RCRA Appeal No. 87-10
13. Erieway, Inc., Bedford, Ohio
RCRA Appeal No. 87-11
14. Chemical Waste Management Inc., Emelle, Alabama
RCRA Appeal No. 87-12
15. Hoechst Celanese Corporation, Greer, South Carolina
RCRA Appeal No. 87-13
16. Ecolotec, Inc., Dayton, Ohio
RCRA Appeal No. 87-14
17. Interstate Lead Company, Inc., Leeds, Alabama
RCRA Appeal No. 87-16
8/30/88
-------
INDEX OF RCRA PERMIT APPEAL FACT SHEETS (CONT'D)
18. Pacific Gas & Electric Company, Pittsburg, California
RCRA Appeal No. 87-18
19. Shell Oil Company, Deer Park, Texas
RCRA Appeal No. 87-19
20. Monsanto Agricultural Company, Luling, Louisiana
RCRA Appeal No. 88-1
21. Utah Power & Light, Idaho Falls, Idaho
RCRA Appeal No. 88-2
22. Navajo Refining Company, Artesia, New Mexico
RCRA Appeal No. 88-3
23. Chemical Waste Management Inc., Kettleman Hills, California
RCRA Appeal No. 88-4
24. CID, Calumet City, Illinois
RCRA Appeal No. 88-5
25. Chem-Security Systems, Inc., Arlington, Oregon
RCRA Appeal No. 88-6
26. Eli Lilly and Co., Tippecanoe Laboratories, Shadeland, Indiana
RCRA Appeal No. 88-7
27. Waste Tech Services and BP Chemicals America, Inc., Lima, Ohio
RCRA Appeal No. 88-8
28. Pearl Harbor Public Works Center, Mahalapa, Hawaii
RCRA Appeal No. 88-9
29. Amerada Hess, Port Reading, New Jersey
RCRA Appeal No. 88-10
30. American Cyanamid Company, Westwego, Louisiana
RCRA Appeal No. 88-11
31. L-TEC Company, d/b/a L-TEC Welding and Cutting Systems,
Florence, South Carolina
RCRA Appeal No. 88-12
32. USX Corporation, Gary, Indiana
RCRA Appeal No. 88-13
8/30/88
-------
INDEX OF RCRA PERMIT APPEAL FACT SHEETS (CONT'D)
33. Environmental Waste Control, Inc., d/b/a Four County Landfill,
Fulton County, Indiana
RCRA Appeal No. 88-14
34. Ross Incineration Services, Inc., Grafton, Ohio
RCRA Appeal No. 88-15
35. Chemical Waste Management, Inc., Emelle, Alabama
RCRA Appeal No. 88-16
8/30/88
-------
PERMIT APPEAL FACT SHEET
Facility: E. I. Du Pont
Martinsville, Virginia
VAD 003 114 865
RCRA Appeal No. 86-1
Petitioner: E. I. Du Pont
Petition Filed: March 5, 1986
Status of Petition: Region response postponed pending settlement negotiations
Issues: RFI conditions are not justified
Definition of solid waste management unit
Other corrective action issues (compliance schedule)
Miscellaneous other issues (recordkeeping and reporting)
Summary of Petition:
The petitioner outlines two groups of issues to be reviewed: general
issues concerning the scope of the corrective action section of the permit,
and specific issues concerning corrective action provisions of the permit. In
addition, the petitioner contests the relevance of a recordkeeping and
reporting provision of the permit. Individual issues within each group are
summarized below.
• General Corrective Action Issues. The petitioner is contesting the
definition of SWMU in the permit and the subsequent corrective action
requirements based on the identified SWMUs.
-- The permittee objects to the finding that the permit contains those
conditions determined to be necessary to protect human health and
the environment. The permittee states that there is no support in
the record for such finding and references a 1982 report of EPA's
contractor review of the facility which states, "Based on available
background information and supported by the fact that the active and
inactive disposal areas appeared to be in good condition during the
FIT Region III site visit, no further action is recommended for this
site."
The petitioner contests the inclusion of pre-1982 solid waste
management units in the corrective action section of the permit.
The petitioner states that the record clearly demonstrates no
possibility for release of hazardous waste or constituents from any
solid waste management unit other than Unit I (the only unit at the
facility to have received hazardous wastes or constituents).
1 of 5
-------
86-1
The petitioner states that the corrective action requirements of the
permit go bevond EPA's statutory authority under Sections 3004 fa")
and 3005. since in implementing these Sections, EPA in its July 15,
1985 codification rule, redefined "regulated unit" to mean
landfills, surface impoundments, waste piles, or land treatment
units that received hazardous wastes after July 26, 1982. Since
units B. C. F. HI. H2. and H3 were closed before July 26. 1982. the
petitioner recommends that all requirements. as they apply to these
units in the permit, be eliminated.
The petitioner further states that since the constituents in all
units other than Unit I are not "hazardous", then even if the Agency
finds that the 1982 cutoff date does not apply to 3004(u)
implementation, units other than Unit I are not subject to
corrective action requirements because those other units never
received hazardous waste or constituents.
Specific Corrective Action Provisions. The petitioner specifies several
conditions in the corrective action portion of the permit concerning
geographic characteristics and the Hydrogeologic Assessment Flan which it
believes are either not Justified (given the petitioner's position on the
SWMUs at the site). are too broad, or are otherwise inappropriate acts of
discretion on the part of EPA.
Specific Geographic Characteristics are as follows:
The petitioner objects to the requirement to identify the
populated areas within five miles of the facility on a recent
map of the area. The petitioner believes the requirement is
burdensome and premature since there is not evidence of any
:_ release from the hazardous waste unit on the site.
The petitioner objects to the requirement to identify specific
routing and exposure information on a map. The petitioner
believes that the requirement is burdensome and unnecessary in
the absence of a finding that a release of hazardous waste or
constituent has occurred from a hazardous waste management unit
subject to the permit. Further, the petitioner believes that
the requirement is unduly duplicative of information provided
in a report on the site prepared by EPA's contractor in 1982.
The petitioner objects to the requirements to provide general
climatological features of the area, as specified in the
permit, for the same reasons described in the above paragraphs
(i.e., that there is no evidence indicating that a release from
the hazardous waste management unit has occurred).
2 of 5
-------
86-1
Specific Hydrogeologic Assessment Plan (HGA) requirements are as
follows:
The petitioner objects to the requirement to include in the HGA
plan 1) ground-water sampling, downgradient of Units C and 0,
to determine if there is off-site migration of hazardous
constituents, and 2) an analysis of leachate from Unit G for
certain contaminants. The petitioner believes that since Units
C, D, and G have never received hazardous waste, the
requirements exceed EPA's authority and are based on findings
of fact that are erroneous.
The petitioner objects to the requirement to describe regional
and local geology in the HGA plan. The petitioner believes
that it is an abuse of discretion to require the permittee to
undertake such efforts until such time as a release is
identified and there is a need for such information.
The permittee objects to the requirement to identify specified
hydrogeologic characteristics of Units I, B, C, D, F, G, HI,
H2, and H3, using a topographic map, isopach and structural
contour maps, and at least two cross-sections. The petitioner
believes that the requirement should be limited to Unit I. as
argued in the "General Issues" section above with regard to
which units are properly subject to the corrective action
requirements.
The petitioner believes that the scope of the requirement to
provide a description of water level or fluid pressure
monitoring should be made more definite. The petitioner would
not object to the requirement provided that it relates to
activities associated with Unit I. However, the petitioner
believes that to require a broader program would involve
unnecessary expense and would not be reasonably related to any
probability of release of hazardous waste constituents from any
other units on the site.
The petitioner believes that the requirement to "provide a
description of manmade influences that may affect the
hydrogeology of the site" is very broad and indefinite. The
petitioner submits that to investigate manmade influences
relating to Unit I that may affect the hydrogeology of the site
is relevant, but to undertake a comprehensive hydrogeologic
study of the site in view of the record in the permit is unduly
burdensome. is not relevant at this time, and is an abuse of
the Agency's discretion.
3 of 5
-------
86-1
The petitioner objects to the requirement to submit a health
assessment of hazardous materials within 90 days of the
effective date of the permit. The petitioner believes that
there is no need for a health assessment at this time. To do
one would require knowledge of the identity and concentration
of hazardous materials which are leaking from the unit.
However, no such information is available since a release has
not yet been confirmed.
The petitioner objects to the establishment of a compliance
schedule in the permit. Recognizing that Section 3004(u) of
RCRA indicates that permits issued under Section 3005 may
contain schedules of compliance for corrective action, the
petitioner contends that to date there is no indication in the
record that corrective action will be required at the site.
The permit clearly indicates that revisions may be necessary
should releases be identified in the investigation phase and,
therefore, the permittee believes that schedules of compliance
should not be established until the nature and extent of such
compliance activities are determined. The petitioner believes
that in the absence of establishing a need for corrective
action, all of the compliance deadlines stated in the permit
are arbitrary, capricious, and an abuse of the Administrator's
discretion. Specifically the petitioner objects to the
following requirements:
• to implement the HGA plan within 90 days after EPA's
approval of the plan
• to submit an HGA report to EPA and.to the Virginia
Department of Health within 90 days after the permittee
implements its HGA plan
• to develop and submit to EPA and to the Virginia
Department of Health a plan for the design and
installation of a monitoring well network within 30 days
of EPA's approval of the submitted HGA report, if the HGA
report confirms contamination
• to submit a sampling and analysis plan capable of yielding
representative samples for a comparison of upgradient and
downgradient wells, within 30 days of EPA's approval of
the submitted HGA report, if the HGA report confirms
contamination
• to complete the installation of the well network no later
than 90 days after EPA approval of the well network plan
and the sampling and analysis plan
4 of 5
-------
86-1
• to implement the sampling and analysis plan, collect
samples, analyze results, and submit results to EPA for
review no later than 60 days after installation of the
well monitoring network
• to submit to EPA and the Virginia Department of Health a
sludge sampling plan for Unit D within 30 days of the
effective date of the permit. (In addition to the reasons
stated at the beginning of the objection to a compliance
schedule, the petitioner objects to this last deadline
because Unit D does not contain hazardous waste.
Furthermore, the petitioner objects to two other deadlines
that are contingent on the completion of this deadline.)
Recordkeeping and Reporting. The petitioner objects to the requirement
to maintain a written operating record at the facility in accordance with
40 CFR 264.73(b)(9) (Waste Minimization). The petitioner believes that
this requirement has little, if anything, to do with the subject matter
of the permit.
5 of 5
-------
PERMIT APPEAL FACT SHEET
Facility: Allied Corporation (Baltimore Chrome Ore Works)
Baltimore, Maryland
HDD 069 396 711
RCRA Appeal No. 86-4
Petitioner: Allied Corporation
Petition Filed: December 29, 1986
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: RFI conditions are too vague
Definition of solid waste management unit
Due process
Other corrective action issues (previous submittal of remedial
investigation, risk assessment, and ground-water monitoring plans;
financial assurance demonstration)
Joint permitting
of Petition:
Allied objects to six specific Regional permit conditions which the
petitioner says are based on: (1) a clearly erroneous finding of fact or
conclusion of law; or (2) an exercise "of discretion or an important policy
consideration that the Administrator should review in his discretion. Each of
the six specified points of contention is discussed below. The majority of
these issues address corrective action requirements in the permit.
• Scope and Nature of the Remedial Investigation and Risk Assessment.
Allied requests that the Region III permit acknowledge that Allied has
already submitted a Remedial Investigation (RI), a Risk Assessment (RA),
and a ground-water monitoring plan that are sufficient to satisfy the
requirements for initial submissions under Part II.A.I and C.I of the
final permit.
Region III noted "serious deficiencies" in Allied's RI and RA
submittal. but scheduled Allied to submit a revised RI and RA within
30 days after the effective date of the Region III'permit. Allied
believes that at least six months will be needed to submit these
revised reports, which require additional field work.
At the same time, Allied is bound by the Federal District Court's
RCRA Consent Order to proceed with a Feasibility Study (FS) for
submission to the Maryland Waste Management Administration (WMA)
within 16 weeks after WMA approves the RI and RA. WMA was scheduled
to decide on the RI and RA on April 15, 1986. Allied argues that
for Region III to ignore the obligations imposed by the RCRA Consent
Order and to require Allied to undertake a parallel set of studies
on different schedules from the one required by the RCRA Consent
1 of 2
-------
86-4
Order is an enormous waste of time and money, and delays corrective
action at the facility.
Multimedia Plan Requirements. Allied states that the Region III permit
gives no guidance on what is to be included in certain multimedia plans
specified in the RFI. specifically the facility's surface water control
and monitoring plan (SWCMP) and the air control and monitoring plan
(ACMP). The difficulties arising out of the vagueness and ambiguity of
these Region III permit requirements are compounded by the requirement
that Allied initiate SWCMF and ACMP programs no later than 60 days after
the Regional Administrator's approval. Allied argues that it has no way
of knowing how long it will take to initiate a pair of "undefined"
control programs. Subsequently, Allied requests that the requirements in
the Region III permit for a SWCMP and an ACMP should be deleted until
reasonable guidance on their content can be provided.
Designation of Solid Waste Management Units. Allied objects to the
definitions of two of the four SWMUs at the facility: one SWMU for its
vertical dimension, and another SWMU for both its horizontal and vertical
delineations. Allied argues that information in its Remedial
Investigation (RI) report proposed under the RCRA Consent Order does not.
support Region Ill's definition of these units.
Dispute Resolution. Allied argues that the procedures established by
Part II.E. for dispute resolution and incorporation of the corrective
action plan (CAP) into the Region III permit deprive Allied of due
process, for they (1) impose no deadlines upon Region III for timely
review of documents submitted by Allied; (2) do not specify a mechanism
for review of Agency decisions; (3) may force Allied to offer a CAP as
its own proposed major permit modification (thus disallowing Allied from
challenging the CAP); and (4) rely on Agency assurances of "good faith"
instead of procedural due process.
Demonstration of Financial Assurance for Corrective Action. Allied
argues that the permit should not require a demonstration of financial
assurance at any point before approval of the Corrective Action Plan.
Allied requests that the requirement for a demonstration of financial
assurance on the CAP should be delayed until the point at which the CAP
is incorporated into the permit.
Joint Permitting. Allied requests that Part I. standard conditions.
paragraphs H-10. H-12. H-13. and H-14. be deleted from the final Region
III permit. Allied argues that these paragraphs, which relate to
reporting anticipated noncompliance and releases that may create
emergency conditions, duplicate virtually word-for-word corresponding
provisions in the facility's base RCRA permit issued by the State of
Maryland.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: American Cyanamid Company
Willow Island, West Virginia
WVD 004 341 491
RCRA Appeal No. 86-4A
Petitioner: American Cyanamid
Petition Filed: December 2, 1986
Status of Petition: Appeal awaiting disposition by the Administrator
Issue: Definition of solid waste management unit
Summary of Petition:
American Cyanamid has petitioned for a review of permit item #7, which
addresses the need for submitting a sampling and analysis plan and potentially
initiating remedial investigations for ash disposal sites.
• Definition of Solid Waste Management Unit. American Cyanamid disagrees
with Region Ill's position that a possible release from a unit containing
fly ash is regulated pursuant to S3004(u) of RCRA. as amended bv HSWA.
American Cyanamid bases its argument on the fact that fly ash and bottom
ash generated by coal -fired boilers are currently not defined as
hazardous wastes under RCRA, and are thus exempt from the scope of
Subtitle C.
American Cyanamid argues that it is unfair and unequal treatment
that only those fly ash/bottom ash disposal units at facilities
seeking a RCRA permit would be investigated. Consequently . American
Cyanamid objects to the requirement to submit ** sampling and
analysis plan for these units and possibly to study these units
g a remedial investigation.
American Cyanamid requests that all proposed requirements relating
to these units be deleted from the final permit.
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Texaco Inc., Texaco Research Center Beacon
Glenham, New York
NYD 091 894 899 '
Permit Appeal No. 86-5
Petitioner: Texaco
Petition Filed: June 13, 1986
Status of Petition: Appeal stayed pending settlement negotiations
Issues: RFI conditions are too vague
RFI conditions are not justified
Due process
Joint permitting
Miscellaneous other issues (definition of facility boundaries; other
specific conditions)
Sunnary of Petition:
Texaco is petitioning the Administrator to review the RCRA permit issued
on May 28, 1986, to its Texaco Research Center Beacon (TRCB) facility. Texaco
contends that a number of the provisions of the permit are contrary to law,
are not supported by substantial evidence, and are contrary to a consent
agreement previously entered into between Texaco and New York State Department
of Environmental Conservation (DEC). The petitioner outlines four groups of
issues to be reviewed: (1) issues relating to corrective action provisions of
the permit; (2) procedural issues; (3) joint permitting issues; and (4) other
miscellaneous issues, including definition of facility boundaries and specific
concerns regarding the permit section entitled "Module III-Specific
Conditions." Individual issues within each of these four groups are
summarized below.
• Corrective Action Issues. Texaco is contesting provisions in the final
permit relating to specific corrective action conditions. The petitioner
suggests that one provision violates due process, while the others need
clarification.
Texaco contends that paragraph 15 of the permit violates due
process. because it provides the Agency with "unfettered" discretion
to require at any time that corrective measures be taken. Also, the
paragraph does not specify what action should be accomplished in the
event that corrective measures are required.
The petitioner contends that the permit does not provide guidelines
for what will be acceptable in formulating a proposal for a Field
Investigation and provide a meaningful right of review should Texaco
and the Agency be unable to agree on the terms of the investigation.
1 of 3
-------
86-5
The requirement that all necessary permits, easements, and rights of
way needed to perform the Field Investigation and all other
obligations of Texaco under the permit must be obtained unless
Texaco can demonstrate "to the Agency's satisfaction" that the
permits or other items could not be obtained despite Texaco's best
efforts should be modified. Texaco believes that the courts, rather
than EPA, should decide whether Texaco has used its best efforts.
The petitioner contends that in the portion of the permit entitled
"Fact Sheet for Hazardous Waste Storage Permit," the Agency states
that it has made a tentative decision that a release has occurred
and that a remedial investigation should be conducted. The
petitioner contends that the Agency has failed to demonstrate a
release, and requests that EPA clarify the nature and location of
the purported release.
Procedural Issues. Texaco states that it was denied adequate opportunity
to appeal the permit conditions. due to a delay in receiving information
from the Region on it final decisions.
Joint: Permitting Issues. The petitioner claims that EPA usurped New
York's authority to issue the permit, which became effective after New
York State became authorized to implement the base RCRA program. In
addition, the petitioner contends- that Texaco and DEC. agreed by consent
order to remediate certain closed hazardous waste sites by excavation.
According to Texaco, this remediation is complete and each step was
approved by DEC. The petitioner argues that the permit should reflect
the completion of these activities.
Facility Boundary. Texaco argues that EPA has improperly defined the
boundaries of the facility to include the "Recreational Area," which is
also owned by the petitioner, but separated from TRCB by a public road, a
railroad, and a creek. According to Texaco, this improper definition
results in the following:
It subjects units that are outside of the boundary of the facility,
as defined by the petitioner, to §3004(u) corrective action
requirements.
It purports to regulate seven treatment, storage, or disposal (TSD)
units that are not identified in the Part B permit application and
are not part of the facility, or "on-site" as defined by RCRA.
Errors in Module III - Specific Conditions. Texaco states that the
section of the permit entitled "Module III - Specific Conditions"
contains the following errors:
The petitioner contends that the permit should state that its
effective date is one month after issuance instead of the date on
2 of 3
-------
86-5
which it is signed by the Regional Administrator.
Texaco claims that the proper definition of "hazardous wastes" is
not employed in the permit. The petitioner requests that the
phrase, "any toxic degradation products of such wastes and of such
constituents" be deleted from the definition.
Texaco argues that the requirement to retain an independent third
party private engineer to certify the technical, engineering, and
analytical obligations required by the permit should be deleted.
[With regard to the following points, it is unclear from the
petition whether the' petitioner is referring to Subpart F
requirements or to the HSWA mandated ground-water monitoring program
for SWMOs. ]
The petitioner contends that the term "Requisite Technology" should
be redefined to provide consideration for cost-effectiveness of the
particular technology.
The petitioner suggests that the section of the permit entitled
"Landfills" should be deleted, since the permit is not intended to
apply to these areas. In addition, Texaco claims that DEC and TRCB
each took soil samples on several occasions. Therefore, the
Agency's concern that all contaminated subsoils were not removed
from the landfills because "no soil core samples were taken" is
unfounded.
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Vulcan Materials Company
Wichita, Kansas
KSD 007 482 029
RCRA Appeal No. 87-1
Petitioners: 1. Vulcan Materials
2. Donna Hinderliter
3. Lauri Maddy
Petitions Filed: 1.
2.
3.
Status of Petitions:
January 28, 1987
January 29, 1987
February 4, 1987
Vulcan Materials withdrew its petition on February 26,
1988, based on modification of the final permit to
include a revised dispute- resolution provision, and
incorporation in the administrative record of EPA's and
Vulcan's written understandings of the meaning of
Section VI of the permit, addressing HSWA corrective
action provisions. The two other petitions await
disposition by the Administrator.
Issues: Due process
Other corrective action issues (use of existing data and reports;
compliance schedule; submittal of bi-monthly progress reports)
Joint permitting
Miscellaneous other issues (permitting of incinerators under TSCA;
other PCB-related issues; storage of off-site wastes; clarification
of waste streams)
Sumary of Petitions:
Vulcan Materials petitions for review of certain conditions set forth in
Section VI of its permit, addressing corrective action requirements for solid
waste management units. Ms. Hinderliter and Ms. Maddy object to State-issued
portions of the permit and EPA issuance of TSCA approval for incineration at
the facility.
• Use of Existing Corrective Action Data and Reports. Vulcan Materials
believes that EPA has made major modifications to the provisions of the
RCRA Facility Investigation (RFI) plan and Corrective Measures Study
(CMS) plan which first appeared in the draft permit.
The final permit appears to preclude Vulcan Materials from utilizing
investigative data accumulated by the petitioner and EPA over a
1 of 3
-------
87-1
period of several years, and studies and reports based on these
data. Vulcan Materials wishes to avoid the expense of duplicating
such work when complying with the RFI conditions set forth in the
permit. Consequently. Vulcan Materials requests that EPA assess the
reliability and utility of such data before requiring Vulcan
Materials to initiate additional media investigations.
Vulcan Materials objects to portions of the CMS requirements which
make no allowance for possible utilization of components of the
facility's existing ground-water corrective action program.
Schedule of Conpliance for Corrective Action. Vulcan Materials seeks
review of the timetable set forth in the permit schedule of compliance
for corrective action. For example, the final permit requires one final
report, six investigation plans, and two programs for the development of
a plan be submitted within 60 days of permit issuance, and two additional
plans be submitted within 120 days of permit issuance. Vulcan Materials
does not believe that it will be able to supply the detail required and
still comply with the timetable set forth in the permit. In addition,
Vulcan Materials states that these requirements are more than those
contained in the draft permit.
Submittal of Bi-Monthly Corrective Action Progress Reports. Vulcan
Materials objects to the requirements for bi-monthlv progress reports.
suggesting that this information will already be contained in the
facility's work plans, remediation reports, and corrective action
reports.
Due Process. Vulcan Materials seeks review of provisions depriving the
facility of the right to appeal or contest any modifications to a plan,
schedule, or report which are subsequently ordered by EPA and not
concurred with by Vulcan Materials. The petitioner states that it is
clearly erroneous for the Regional Administrator to waive appeal rights
as a condition for the issuance of the permit.
Permitting of Incinerators Under TSCA. Both Ms. Maddy's and Ms.
Hinderliter's appeal concerns issues surrounding the operation of Vulcan
Materials' incinerator, which EPA has approved for disposal of
polychlorinated biphenyls (PCBs) under TSCA. PCBs are a by-product of
the chemical manufacturing process at this facility. These appeals are
based on the following issues:
Conditions under which the trial burn was conducted are not those
specified in the permit. For example, the PCB concentration in the
waste stream used in the trial burn was 100 ppm, whereas the permit
allows a concentration of 1,000 ppm. Similarly, the operating
permit specifies a waste feed rate greater than 0.8 gpm and a flow
rate greater than 1.0 gpm, whereas the trial burn rates were much
lower. Ms. Maddy requests that the permit be rewritten as to
operate the incinerator at the exact conditions that the incinerator
2 of 3
-------
87-1
was tested, or to re-test the incinerator at the exact operating
conditions which Vulcan Materials plans to utilize.
It has not been demonstrated that the incinerator can meet the
destruction and removal efficiency (ORE) as required by law when
operating at the permitted conditions.
EPA and the State did not accurately consider modification of the
feed rate, the fluctuating flow rate characteristics of the
hazardous waste stream, etc. and their affects on the
characteristics of the stack emission products during burning of the
hazardous waste stream. The trial burn did not produce dioxins and
furans that posed a significant threat to public health; this may
not hold true when the concentration of PCBs in the waste stream is
increased to 1,000 ppm.
Destruction by incineration of the components in the waste stream
may be questionable, due to incompatibility of the waste strea"»,
Ms. Hinderliter was concerned about problems reported during the
trial burn tests such as condenser breaking, freezing lines, leaks,
and inadvertent introduction of air into samples.
The petitioners questioned why Vulcan Materials was able to waive
out of a TSGA requirement to test PCS waste stream r.oncentrations
every 15 minutes.
Other PCB-Related Issues. Ms. Maddy requests documentation presented
during the EPA inspections of the Vulcan Materials facility, indicating
the company has not exceeded the allowable concentration of PCS in
products leaving the facility. In addition, Ms. Maddy requests that
Vulcan Material's products be taken off the shelf and tested for their
FOB concentration.
Storage of Off-Site Vaste. Ms. Maddy objects to the permit conditions in
the State portion of the permit allowing Vulcan Materials to store off-
site hazardous waste on the following grounds:
Vulcan Materials is not a commercial storage area;
There is no safe means of disposal for this waste; and
The area will have a greater exposure rate due to the accidental
spills, either caused by transportation or leaking barrels.
Clarification of Waste Streams. In the State portion of the permit,
waste stream K016 is permitted for incineration and for deep well
injection as "ground-water cleanup water." Ms. Maddy believes that the
permit should distinguish between K016 for incineration and K016 for deep
injection, clarifying that K016 for deep injection is not allowed to be
incinerated.
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Heritage Environmental Services (HES)
Putnam County, Indiana
IND 980 503 890
RCRA Appeal No. 87-4
Petitioner: HES
Petition Filed: February 10, 1987
Status of Petition: Petition withdrawn. Permit was modified, effective
March 22, 1988.
Issues: Level of detail
Joint permitting
Procedural issues
Miscellaneous other issues (inspection of and liquid removal from
secondary leachate collection system; soil thickness of final
cover)
Summary of Petition:
The petitioner contests the permit's level of detail, joint permitting
Issues, and procedural issues, HES also raises issues relating to the
inspection of and liquid removal from the secondary leachate' collection
system and the soil thickness of the final cover.
• Level of Detail. The petitioner raised several issues regarding the
level of detail in the. permit for this hazardous waste landfill
facility:
The permit includes an attachment containing technical liner
specifications on geotextile/secondarv collection media for side
slopes. HES asserts that the geotextile manufacturer will only
state that the material complies with the physical property
listings within normal statistical ranges. Due to differences in
laboratory techniques and test methods, HES contends that it is
difficult to verify these specifications in the attachment to the
permit. The petitioner believes that, at most, the values in the
attachment should be established as averages, rather than as
minimum, requirements.
The permit specifies certifications that must be obtained from
liner manufacturers and installers for each panel of the synthetic
liner. The petitioner states that this condition is new to the
final permit, that it is uncertain whether a fabricator can provide
test results for each liner panel, and that consequently it may not
be possible to obtain the required certifications.
The permit requires HES to test the synthetic liner for
1 of 2
-------
87-4
compatibility with leachate from the landfill, using a specific EPA
test method, unless the material is from the same manufacturer and
had been previously found to be compatible. The petitioner
contends that there is inadequate time between selection of a liner
supplier and construction of the liner to allow for a complete test
on the liner material from a different manufacturer.
HES asserts that its is inappropriate for EPA to limit compaction
equipment to specific models (e.g., D-3 light dozers, D-8
bulldozers).
HES believes that the compaction method for the "underdrain" and
the leachate collection system should be the same. The permit now
specifies the compaction method for the underdrain as requiring a
"vibratory hand-held plate compactor," whereas the compaction
method for the leachate collection system relies on bulldozers.
Joint Permitting Issues. The permit limits the disposal of any waste
except that from the HES Processing Plant without prior approval by the
Indiana Department of Environmental Management (IDEM). HES believes
that requiring IDEM approval is beyond EPA's authority. The petitioner
makes the same point with respect to a condition requiring IDEM
approval prior to unloading waste from a source other than the HES
Processing Plant.
Procedural Issues. HES objects to a peel adhesion seam requirement of
10 pounds per inch. This requirement was not included in the draft
permit (i.e.. a procedural issue on development of the final permit).
and the petitioner contends that there is no NSF #54 standard for field
seams. HES suggests that an appropriate peel adhesion requirement
would be 8.5 pounds.
Inspection of and Liquid Removal from Secondary Leachate Collection
System. The Federal permit requires inspection of the secondary
leachate collection system "daily during the active life of the
facility..." The petitioner would substitute "cell" for "facility,"
contending that otherwise the daily inspections may be required for 50
years of more. The petitioner makes this same point with respect to
the frequency of liquid removal from the secondary collection system.
Soil Thickness of Final Cover. The petitioner believes that the soil
layer thickness of the final cover should be 18 inches, rather than 18
feet.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Allied Corporation
Metropolis, Illinois
ILD 006 278 170
Permit Appeal No. 87-6
Petitioner: Allied Corporation
Petition Filed: May 5, 1987
Status of Petition: Region response postponed pending settlement negotiations
Issues: RFI conditions are too vague
RFI conditions are not justified
Definition of solid waste management, unit
Due process
Other corrective action issues (sampling requirements)
Procedural issues
Miscellaneous other issues (surface impoundment requirements)
Summary of Petition:
The petitioner outlines three groups of issues to be reviewed: (1) issues
relating to corrective action; (2) procedural issues; and (3) surface
impoundment requirements. Individual issues within each group of these three
groups are summarized below.
• Corrective Action Issues. Allied is contesting provisions in the final
permit relating to specific corrective action conditions. The petitioner
contends that EPA has improperly defined the solid waste management unit
(SWMU) to include an old wood treatment facility. Allied objects to the
permit provisions, which require RCRA Facility Investigation (RFI)
activities at this site. The petitioner objects to other conditions on
the grounds that they are unclear, unjustified, and/or inappropriate.
The petitioner argues that the permit conditions requiring
corrective action Investigations at the site of an wood treatment
facility are not within EPA's authority under §3004(u) for two
reasons: (1) there is no SWMU at that site; and (2) assuming that
there is a SWMU at that site, there is no basis for treating the
entire facility as a SWMU. In addition, Allied suggests that the
RCRA Facility Assessment (RFA) findings do not support the need for
an RFI at the site of the old wood treatment facility. Although EPA
did not conduct a sampling visit as part of the RFA, EPA did perform
a visual site inspection which found no evidence of contamination on
the surface of the old facility. In addition, the Illinois
Environmental Protection Agency (IEPA) performed a post-RFA
inspection of the wood treatment facility. Subsequently, the
1 of 2
-------
87-6
petitioner claims thac it is inconsistent to require soil sampling
at the old facility before it has been determined that there has
been a significant release of a hazardous waste or constituent from
this facility. Allied suggests that the permit require ground-water
monitoring in the uppermost aquifer prior to soil sampling around
the old wood treatment facility.
The petitioner suggests that Phase I and Phase II of the Ground-
water Monitoring Plan are confusing to the point that it cannot be
determined in which phase actions are to be undertaken. Because the
permit contains no definition of a "release." the Region has no
standard to determine when Phase II sampling can be required.
Allied also believes that quality assurance/quality control (PA/PC)
requirements for these sampling plans are overly detailed and overly
burdensome.
Allied claims that aspects of the permit violate due process.
because they give the Regional Administrator "unbridled" discretion
both to determine whether corrective measures are necessary and to
require the performance of testing procedures.
Allied claims that the requirement to sample ground water for all
Appendix VIII constituents is excessive and not supported in the
Administrative Record.
Procedural Issues. Allied claims that Region V did not carry through on
its commitment to allow Allied an opportunity to review and comment on
the revised permit before issuing the facility a final permit.
Surface Impoundment Issues. Allied argues that it is "premature" and
"arbitrary" for EPA to define the surface impoundments' second liner
system to include only three feet of the "in situ" clay underlying the
units. Also, Allied states that closure requirements should apply only
to the surface impoundment for which a retrofitting waiver is denied or
revoked.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Sandoz Chemicals Corporation
Mt. Holly, North Carolina
NCD 001 810 365
RCRA Appeal No. 87-7
Petitioner: Sandoz Chemicals Corporation
Petition Filed: May 6, 1987
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: RFI conditions are too vague
RFI conditions are not justified
Due process
Other corrective action issues (corrective action for newly-
discovered solid waste management units (SWMUs))
Miscellaneous other issues (definition of "solid waste;" duration of
permit)
SuBuaxy of Petition:
The petitioner contests the conditions of the permit in two general
areas: corrective action requirements and general facility conditions.
Individual issues within each group are summarized below.
• Corrective Action Requirements.
The petitioner argues that the permit fails to specify adequately
the scope and nature of the RFI plan, which must be prepared for
more than half of the units identified in the RCRA Facility
Assessment (RFA) as SWMUs.
The petitioner contends that the vast majority of SWMUs identified
in the RFA do not require corrective action, because no release has
yet been determined from them. Therefore, .it is not necessary to
implement actions to determine the nature and extent of releases and
potential pathways of contaminant releases from these units.
The petitioner argues that the permit fails to provide a mechanism.
such as appeals or arbitration, for resolving disputes regarding
interpretation of the permit.
The petitioner specifies that the permit includes conditions that
are ambiguous and open-ended (in terms of scope and requirements),
including the scope of an RFA for any new SWMUs discovered at the
facility, the scope of corrective action that may be required, and
the standard condition for the retention of records.
1 of 2
-------
87-7
General Facility Conditions.
The petitioner contends that the permit defines terms in a manner
contrary to. and in excess of. applicable Federal and State
statutory and regulatory provisions. The petitioner specifically
mentions that "solid waste" is defined in a manner contrary to
applicable statutes and rules.
The petitioner contests the establishment of a five-year permit
term, rather than the allowable ten-year term.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: 3M Company
Cordova, Illinois
ILD 054 236 443
Permit Appeal No. 87-8
Petitioner: 3M
Petition Filed: May 7, 19871
Status of Petition: Region response postponed pending settlement negotiations
Issues: RFI conditions are too vague
RFI conditions are not justified
RFI conditions are technically inappropriate
Due process
Other corrective action issues (RFI work plan provisions cumbersome,
NPDES discharges, definition of "facility")
Joint permitting
Sumary of Petition:
3M has petitioned the Administrator to review certain Federal
conditions for corrective action contained in a final permit for incineration
at the facility. These conditions are found in the "Scope of Work Plan for a
RCRA Facility Investigation" section of the permit. 3M petitions the
Administrator to review both the general nature of the work plan, which 3M
believes to be inflexible, and specific provisions contained in the work plan.
Also, the petitioner requests that the Administrator review a joint permitting
issue.
• General Corrective Action Issues. 3M is contesting specific sampling
conditions which the petitioner finds overly burdensome, unreasonable,
and/or infeasible. In addition the petitioner seeks review of specific
ground-water monitoring conditions. The petitioner suggests these
conditions are either overly burdensome, infeasible, or a violation of
due process.
3M objects to the requirement for additional sampling and analysis
of soil in the sludge incorporation areas. 3M suggests that
extensive metals analysis has already been conducted for a sludge
application permit, which indicated that the accumulation or
leaching of metals from the sludge incineration area is not of
concern. Furthermore, 3M argues that it is unreasonable to require
soil sampling before ground-water monitoring indicates a release of
hazardous constituents into the ground water.
•"•3M's attorneys submitted minor edits to the petition in a correspondence
dated May 8, 1987.
1 of 3
-------
87-8
3M claims that provisions regarding implementation of the Phase I
and II sampling plans in the RFI are arbitrary and capricious
because: (1) it is unclear to 3M when Phase I and II sampling are
triggered; (2) the respective time periods provided in the RFI work
plan are insufficient to complete the required procedures; and (3)
should corrective measures be deemed necessary based on the Phase II
final report, the permit does not provide 3M with an opportunity for
time extensions in the event problems or changes occur in conducting
corrective measures.
The petitioner requests the Administrator to review the condition of
the work plan that relates to the Phase I ground-water monitoring
system for the wastewater treatment plant and the sludge
incorporation areas.. 3M argues that the provision, which requires
the monitoring system to be capable of detecting immiscible
contaminants (i.e., floaters and sinkers), is unnecessary because
there will be no "floaters" or "sinkers" entering the ground water.
3M would, however, install a monitoring system capable of detecting
immiscible contaminants if interim monitoring demonstrates it is
necessary.
The petitioner argues that the permit condition that relates to a
ground-water monitoring system for the sludge incorporation areas
and the wastewater treatment plant is vague and ambiguous, because
it provides no detail on how EPA expects 3M to verify a release.
The petitioner objects to the provision which provides that the
permittee must take certain actions if the Regional Administrator
determines, based on the Final RFI Phase I Report, that there has
been a release from the sludge incorporation area. 3M argues that
the condition provides the Regional Administrator with "unfettered"
discretion to require 3M to take remedial action. 3M also objects
to the time periods set out in the provision for submitting certain
information (e.g., a Draft Phase II sampling plan), because the
provision provides no opportunity to extend completion dates.
The permit requires 3M to identify any Appendix VIII constituent
which may be present in the facility's surface impoundment. The
petitioner argues that the constituents in the impoundments cannot
be identified and quantified with the accuracy required by the
permit conditions! because the profile of hazardous constituents in
the impoundments is constantly changing.
Specific Corrective Action Issues. 3M is contesting specific conditions
that relate to corrective action. The petitioner seeks review of these
conditions which include the use of existing monitoring wells, the term
"facility," NPDES permitted discharge, and data submitted.
3M objects to the provisions of the work plan that relate to Phase I
and II ground-water monitoring systems for the wastewater treatment
2 of 3
-------
87-8
plant and the sludge incorporation areas, respectively. The
provisions preclude the use of existing monitoring wells in the
surface impoundment area. 3M requests that the permit be modified
to allow the use of existing wells under certain circumstances.
3M argues that the term "facility" as it relates to the wastewater
treatment plant and the sludge incorporation areas should include
only the surface impoundments. since these units would be
investigated if contamination were found.
The petitioner objects to the permit provision that requires 3M to
provide information regarding NPDES permitted discharges to surface
water, because such discharges are regulated under the Clean Water
Act.
3M believes that the RFI workplan is "rigid" and "inflexible." as
demonstrated by specific provisions which mandate the types of
procedures 3M must follow and actions it must take under the plan.
For example, the workplan specifies submittal of select data in
graphic or tabular displays -- 3M argues that this condition
precludes the use of its best professional judgment in presenting
these required data.
Joint Peraitting Issues. 3M objects to the provision that sets forth
specific closure requirements for the facility's surface impoundments.
3M argues that the Illinois Environmental Protection Agency (IEPA) has
sole authority in Illinois to govern the closure of hazardous waste
surface impoundments.
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Mobay Corporation
Kansas City, Missouri
MOD 056 389 828
RCRA Appeal No. 87-9
Petitioner: _Mobay Corporation
Petition Filed: May 13, 1987
Status of Petition: Region response postponed pending settlement negotiations
Issue: Due process
of Petition:
The petitioner is appealing Special Condition 3fG) of the Federal portion
of the final permit issued to this hazardous waste storage and incineration
facility. Special Condition 3(G) provides that in the event of EPA
disapproval of any plan, schedule, or report required in this permit, the
permittee shall have 30 days to submit a modified plan, report, or schedule to
EPA for approval. Should the permittee take exception to EPA's disapproval,
the permittee and EPA may attempt to resolve the disagreement. In the event
that resolution is not reached within 30 days, however, this condition
requires the permittee to modify the plan, schedule, or report as required by
EPA. Mobav believes that this condition does not clearly specify the time
frame in which a plan, schedule, or report mav be negotiated, nor does it
describe in detail the procedures for administrative review of disagreements.
Mobav argues that this condition is vague and *»"»h'i|guous and mav result in a
violation of Mobav's right to due process.
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Mobay Corporation
Bushy Park, South Carolina
SCD 048 373 468
RCRA Appeal No. 87-10
Petitioner: Mobay Corporation
Petition Filed: July 2, 1987
Status of Petition: Appeal stayed pending settlement negotiations
Issue: Due process
Sumary of Petition:
• Corrective Action Requirements. The petitioner contests the permit on
the grounds that due process is denied under the schedule of compliance
for corrective action by the incorporation of the following condition:
"All plans and schedules shall be subject to approval
by the Regional Administrator prior to implementa-
tion. The permittee shall revise all submittals as
specified by the Regional Administrator."
The petitioner argues that this condition provides for the automatic
incorporation of new permit requirements by a procedure which is
inconsistent with EPA permit procedures. with EPA policies. with
§3005 of RCRA. and with due process requirements under the U.S.
Constitution. Amendment 5.
The petitioner suggests adding the following sentence to the
condition: "All revisions to plans and schedules will be
incorporated by EPA pursuant to 40 CFR 270.41 and Part 124."
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Erieway, Inc.
Bedford, Ohio
OHD 055 552 429
RCRA Appeal No. 87-11
Petitioner: Erieway
Petition Filed: October 23, 1987
Status of Petition: Region response postponed pending settlement negotiations
Issues: Joint permitting
Miscellaneous other issues (compliance with Part 264 Standards)
Sunmary of Petition:
Erieway raises issues that relate to the joint permitting status of the"
facility and compliance with Part 264 requirements.
• Joint Permitting. Erieway contends that compliance with the Federal
permit will cause Eriewav to violate State law.
Although Ohio is not authorized for the base RCRA program, Ohio does
have its own State statutes and regulations which apply to all
hazardous waste management facilities in the State. Specifically,
Erieway would have to submit for approval to the Ohio Hazardous Waste
Facility Board a permit modification application and revised permit
for capital improvements Erieway plans to construct pursuant to its
Federal permit.
Initiation of construction activities to comply with the Federal
permit prior to State approval would violate State regulations. Delay
in initiating construction, however, would cause Eriewav to be in
violation of it Federal permit. If that occurs, Erieway contends that
it would be required to begin closure activities pursuant to 40 CFR
§265.112(d) and §265.113.
Erieway requests that in the absence of joint permitting, EPA amend
the permit compliance schedule to allow Erieway to operate while
awaiting a final decision from the State permitting authorities on its
Part B application.
• Compliance with Part 264 Standards. Erieway contends that Condition VII
(compliance schedule) of the permit does not provide adequate time for
Erieway to modify and improve its facility as necessary to bring the
facility into compliance with 40 CFR Part 264 standards, particularly
those standards resulting from HSWA-mandated changes (e.g.. new tank
system standards, new closure and corrective action requirements'). The
1 of 2
-------
87-11
petitioner contends that the permit schedule of compliance should be
amended to allow Erieway adequate time to obtain financing necessary to
construct $3 million in planned capital improvements over the next two
years, and to complete construction of these modifications.
Erieway argues that these changes could not be made during interim
status, since the value of the changes (i.e., $3 million) is equal to
the replacement cost of the entire facility. 40 CFR 270.72 sets a
limit of 50 percent of reconstruction costs for allowable changes
during interim status.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Chemical Waste Management, Inc. (CWM)
Ernelie, Alabama
ALD 000 622 464
RCRA Appeal No. 87-12
Petitioners: 1. The State of Alabama
2. The Alabama Chapter of the Sierra Club and the Alabama
Conservancy
3. The Alabamians for a Clean Environment (ACE), the Sierra
Club (Alabama Chapter), the Alabama Conservancy, and
Greenpeace U.S.A., Inc.
4. Chemical Waste Management, Inc.
At the request of counsel, petitions #1 and #2 were treated as a
single petition.
Petitions Filed: July 10, 1987
Status of Petitions: Case resolved. On May 27, 1988, the EPA Administrator
issued an Order which granted the petitions for review,
in part, and remanded the proceeding to the Region for
further consideration. The Administrator concluded that
the petitions for review should be granted to the extent
they request the Region to consider adding specific
controls for products of incomplete combustion ("PICs")
and metal emissions from the incinerator. In all other
respects, the petitions were denied.
Issues: Procedural issues
Level of detail
Miscellaneous other issues (compliance with RCRA and NEPA; specific
unit design and operating standards)
Sumary of Petitions:
• Issues Contested by the State of AlaKama the Alabama Chapter of the
Sierra Club, the Alabana Conservancy, the Alabamians for a Clean
Environment, and Greenpeace U.S.A., Inc. Each of these petitioners
specifies areas in which it believes EPA's decision to issue the permit
was based on inadequate, insufficient, or inappropriate information. The
petitioners contend that the terms of the permit are erroneous. Their
arguments are presented below.
1 of 9
-------
87-12
The petitioners claim that EPA failed to comply with NEPA by
deciding not to prepare an Environmental Impact Statement (EIS).
The petitioners further argue that the RCRA permitting process is
not functionally equivalent an EIS. In addition, the petitioners
contend that the contingency plan does not satisfy the requirements
of RCRA and that the ground-water monitoring and protection
provisions in the permit do not comply with RCRA.
The petitioners argue that the landfill design is inadequate to
protect ground water and that the Exposure Information Report is
inadequate to support a permit decision for the landfill. In
addition, the petitioners contend that the decision to prolong the
operation of an unlined surface impoundment at the facility and to
allow significant concentrations of volatile organics in the
impoundment was erroneous. Third the petitioners argue that the
decision not to require complete and sufficient monitoring for the
proposed incinerator was an erroneous finding of fact.
--_.__Ihe petitioners contend that the designated permit period of seven
-years is too long. Further, the petitioners state that the public
participation was inadequate and that due process violations
occurred in the issuance of the permit.
The petitioners assert that EPA's conclusion that the issuance of
the permit would have no effect on cultural resources is erroneous.
The petitioners believe that EPA ignored CUM's track record of
illegalities and violations in issuing the permit and issued the
permit despite current violations at the facility. Moreover, the
petitioners believe that EPA failed to take important consent decree
studies into account in the permit review.
CUM argues against the granting of the other three petitions submitted to
EPA in a document entitled, Opposition to Petitions for Review. This
opposition states, among other reasons, that these petitions should be denied
because they lack specificity, they do not make the requisite "threshold
showing" required in the RCRA permitting process to obtain review, and that
some of the petitioners lack standing for their requests for review (i.e., the
petitioner did not comment, during the public comment period, on the condition
for which he now petitions for review).
• General Issues Contested by Chemical Vaste Management, Inc. This
petitioner contests three general areas of the permit: 1) the permit
conditions for the incinerator, 2) the shallow well network requirements,
and 3) the permit's incorporation of descriptive information, including
designs and drawings, provided by CUM in the permit application process.
A synopsis of the petitioner's contentions are presented below. A more
detailed discussion of the specific conditions for which this petitioner
seeks review follows.
2 of 9
-------
87-12
CUM requests review of a number of the permit conditions for the
rotary kiln incinerator. In each case, the petitioner contests that
the conditions are either inappropriate for the incinerator.
arbitrarily required by EPA, or unnecessary procedural requirements.
The petitioner argues that the most significantly flawed conditions
are the two which impose a combustion air feed requirement in the
event that the incinerator's thermal relief vent opens. Other
conditions which the petitioner would like reviewed are:
the limitation of CUM's operations in the period following the
trial burn to a specific mix of waste feeds
six conditions which deal with viscosity limitations and
atomizing steam pressure
two conditions prohibiting wastefeed to the incinerator before
performing analyses of metals in each batch of waste
--- the specific condition that CUM must meet in designing a new
-^- trial burn plan
two conditions which specify the number of waste containers CUM
must inspect to minimize the introduction to the incinerator of
free standing liquid in containers
two conditions which identify the types of wastes that may be
fed into the incinerator through the ram-feeder device
- — two conditions which specify requirements for submitting design
engineering details for Agency approval and for incorporating
"as-built" drawings of the incineration system into the permit
after completion of construction
The petitioner does not believe that there is any justification for
automatically triggering a full-scale assessment, including an
evaluation plan, if hazardous constituents are detected in the
shallow well network. CWM believes that such a requirement in the
permit reflects a preconceived notion of what an evaluation plan
should include and does not contain sufficient flexibility to allow
for a mere investigation of laboratory procedures where that might
be all that is appropriate. The petitioner suggests that the permit
should instead require CUM to share with EPA any migration rate data
from the shallow well network and to determine on a case-by-case
basis over the course of time if additional studies are necessary.
In addition, it is the opinion of the petitioner that the condition
which requires the facility to analyze for three metals and to
measure for total metals creates an inconsistency in the final
permit by requiring CUM to analyze for total metals while elsewhere
in the permit establishing further regulatory obligations contingent
on the measurement of dissolved metals.
3 of 9
-------
87-12
The petitioner! argues that EPA introduced an undesirable level of
detail into the permit by adopting, as permit attachments, "plans,"
including drawings, designs and specifications, that CWM furnished
in its application to describe how it intends to develop and operate
the facility and comply with Part 264. CWM further contests that
the condition which specifies the records that CWM must retain at
the facility is burdensome.
Specific Conditions Contested by CUM.
Standard conditions
The petitioner objects to the condition which specifies the
records that CWM must retain at the facility, especially the
particularly burdensome requirement that CWM retain "records of
all data used to prepare documents required bv this permit."
The petitioner objects to the condition which provides that CWM
may not commence treatment, storage or disposal of hazardous
.-"-. waste in a new unit or a modification of an existing unit until
the Regional Administrator has either inspected the unit or
waived inspection by failing to notify CWM within 15 days of
EPA's intent to inspect. If, however, EPA notifies CWM of its
intent to inspect a new or modified unit, the Agency has an
indefinite time in which to conduct the actual inspection.
CWM. concerned over the procedural aspects of the permit.
requested in its ^"""nents on the draft permit that EPA set a
reasonable schedule for its inspection.
- - The petitioner objects to the condition which requires CWM. at
the time it submits monitoring reports. to report to the
_ Regional Administrator any noncompliance with the permit that
is not otherwise reported. The petitioner argues that to
encourage, rather than discourage, internal compliance
monitoring, EPA should place reasonable limits on the use to
which it will put such reports. The petitioner believes that
this condition would be triggered bv subjective determinations
of "compliance" and "noncompliance". Moreover, the petitioner
claims that this condition conflicts with the express terms of
an EPA Consent Agreement and Order applicable to this facility
and, in contravention of EPA's policy on environmental audits,
will discourage candid internal monitoring of the facility's
compliance status.
General facility conditions
The petitioner objects to the condition which was amended in
the final rule to require CWM to obtain EPA's prior written
authorization for changes concerning the use of equipment or
materials equivalent to those identified in the approved
4 of 9
-------
87-12
specifications for any unit.
The petitioner objects to the condition which was amended in
the final permit to require that "as-built" drawings must be
made available to EPA for review at the time of any inspection
conducted pursuant to another specific permit condition which
prohibits CWM from commencing treatment, storage, or disposal
of hazardous waste in a new or modified unit until EPA has
either inspected the unit or waived inspection.
The petitioner requests an additional permit condition. The
petitioner claims that a number of permit conditions require
CWM to obtain EPA's written approval. The petitioner, however,
is concerned that there is no provision in the permit outlining
the schedule to be followed by EPA in reviewing such requests.
the standard against which those requests will be judged, or
the status of CWM's requests and submittal if EPA disapproves
them. To provide the certainty that should accompany a final
permit, the petitioner requests that these provisions be
- spelled put in a general condition.
Storage and management of containers
The petitioner challenges EPA's failure to include certain
wastes among those CWM is authorized to store at the facility.
The petitioner claims that no facility exists that is
authorized to treat, store, or dispose of a particular waste
that CWM is storing at its facility under interim status. The
petitioner argues that unless the permit allows for storage of
these wastes at the facility. CWM will immediately be in
violation of the permit once che permit becomes effective.
Hazardous waste landfill
The petitioner objects to the condition which established
limits on cyanide and sulfide bearing wastes that may be
landfilled at the facility. The petitioner argues that these
limitations are not appropriate for landfill operations and
that they should be modified.
The petitioner objects to the incorporation of four specific
attachments into the permit. The petitioner believes that
these attachments add unnecessary bulk and undesirable detail
to the permit. The attachments, according to the petitioner,
are also inconsistent with the permit conditions, in places,
and thus cause confusion.
5 of 9
-------
87-12
Short term incinerator permit
The petitioner objects to the condition which subjects CWM
unnecessarily to a potential permit violation if the company
inspects the number of containers required by the permit, finds
no free standing liquids, but subsequently discovers that an
uninspected container holds free liquids. The petitioner wants
the "Catch-22" effect of this condition eliminated.
The petitioner objects to the conditions which improperly
(according to the petitioner) exclude containerized waste from
that which may be handled through the facility's ram-feeder.
The petitioner objects to the conditions which require the
automatic cut off of wastefeed to the incinerator when the
wastefeed rates exceed limits specified for the various burning
periods (e.g., "shakedown," trial burn, and post-trial burn).
- The petitioner objects to the conditions which require that if
the thermal relief vent (TRV) is opened, the kiln tamper must
be operated to admit 5922 scfm of air to the kiln. The
_ petitioner believes that the requirements of this condition are
without technical basis or justification. The petitioner
further claims that EFA arbitrarily raised the combustion air
requirement to 5922 scfm. even though State calculations
demonstrated that 1921 scfm of combustion air will supply more
oxygen than is required for complete thermal destruction of
organic constituents in the kiln when the TRV opens.
The petitioner objects to the condition which requires CWM to
prepare and submit a new trial burn plan for EPA's approval.
This condition also specifies the conditions that must be
demonstrated in the trial burn scenarios. The petitioner
challenges the requirement in this condition to demonstrate in
each test the maximum thermal load to the incinerator and the
minimum resistance time. This requirement is an error because
these two conditions simply cannot both be demonstrated in each
test.
The petitioner objects to the conditions which require that
each batch of waste be analyzed for 11 metals before it is fed
to the incinerator, even if there is no limitation on the
metals content of wastes fed into the incinerator. The
petitioner argues that there is no regulatory requirement for
these metal analyses and, more important, the information
gathered from the metal analyses serves no purpose relevant to
deciding whether wastes are acceptable for the incinerator.
The petitioner believes that this method of gathering data on
metals fed to the incinerator unnecessarily and unreasonably
interferes with CWM's operations.
6 of 9
-------
87-12
Rotary kiln incinerator
The petitioner objects to the condition which prohibits the
feed of hazardous waste to the incinerator until another
particular condition, which provides for notice to and
inspection by EPA, has been complied with. The petitioner
states that EPA, in writing the final permit, apparently
decided that the condition which provides for notice and
inspection is insufficient for the incinerator, and therefore
CWM must not only submit as-built drawings for the incinerator,
but must also receive EPA's written approval of those drawings
before feeding waste to the incinerator. The petitioner claims
that the incinerator as-built drawings should be treated in the
same manner as all others under the permit.
The petitioner objects to the condition which requires that CUM
go through a permit modification to incorporate its approved
as-built drawings for the incinerator into the permit. The
petitioner believes that the inclusion of detailed drawings in
the permit is unnecessary and modifying the permit to
accomplish this would be a waste of both CWM's and EPA's
resources.
The petitioner objects to the condition which contains
inspection requirements for containers to ensure that the
containers do not contain free standing liquids. The
petitioner objects to this condition for the same "Catch-22"
reasons as explained above under "Short Term Incinerator
Permit."
The petitioner objects to the condition in which the Agency
retained the viscosity limits instead of relying on
manufacturers' specifications. The petitioner suggested a
similar change to another condition (which sets out wastefeed
limitations) in its comments on the draft permit, and claims
that those comments applied equally to this condition and that
the changes which were made to the other condition should also
be made to this one.
The petitioner objects to the condition for the rotary kiln
incinerator that is similar to the condition above under "Short
Term Incinerator" concerning the exclusion of containerized
waste, and contests this permit condition on the same grounds
as it did the earlier condition.
The petitioner objects to the condition for the rotary kiln
incinerator that is similar to the item above under "Short Term
Incinerator" concerning analyzing each batch of waste for
metals, and contests this permit condition on the same grounds
7 of 9
-------
87-12
as it did the earlier condition.
The petitioner objects to the conditions which mandate
automatic waste feed cutoff when atomizing steam pressure to
the secondary combustor or to the kiln falls below 90 psig.
The petitioner suggests that the valve for a burner be
described in the permit as "the lower limit of the optimal
operating range recommended by the manufacturer," rather than
specifying a particular psig limit.
The petitioner objects to the condition which requires that the
kiln damper admit 5922 scfm of combustion air into the kiln
when the thermal relief valve is open. The petitioner believes
this condition to be improper and contests the condition on the
same grounds as it did the similar condition discussed above
under "Short Term Incinerator."
Ground-water protection
_=__ The petitioner objects to the condition which requires CWM to
analyze three metals and to measure for total metals. The
petitioner claims that this condition creates an inconsistency
in the final permit by requiring CWM to analyze for tbtal
metals while elsewhere in the permit establishing further
regulatory obligations contingent on the measurement of
dissolved metals.
The petitioner challenges the Agency's decision not to include
in conditions under this section the language suggested by CWM
in its comments on the draft permit to assure that a permit
modification proceeding would not be necessary if CWM, or a
laboratory with which it deals, decides it must change the
Field Parameter Form or Chain of Custody Form. The petitioner
believes that these conditions, without the suggested language,
provide another example of the excessive detail included in the
permit. The petitioner further argues that as long as the
permit insures that proper procedures are followed to protect
the integrity of the sample, the form used to do so is
irrelevant.
The petitioner objects to the condition which requires that an
evaluation plan be submitted if a retest confirms the presence
of hazardous constituents in a sample from a shallow well. The
petitioner claims that, contrary to what EPA says in its
response to the comments on the draft permit, this condition
reflects a definite preconceived notion of what an evaluation
plan should include and, furthermore, does not contain
sufficient flexibility to allow for a mere investigation of
laboratory procedures where that might be all that is
appropriate.
8 of 9
-------
87-12
The petitioner objects to the condition which requires CWM to
submit both a report and an application for a permit
modification within 30 days of completing an evaluation
program, and to the condition which states that CWM need not
submit the application for a permit modification if the
Regional Administrator finds that the presence of hazardous
constituents in ground water was not due to a release from a
landfill unit or surface impoundment. The petitioner questions
how CUM could possibly know what the Regional Administrator
will find before CWM has submitted its report. The petitioners
believes that these conditions are confusing and unnecessary.
and that the manner in which the two conditions interact is
unclear. The petitioner suggests either deleting these
requirements or, at the very least, amending the requirements
so that the application for a permit modification would not be
required until after EPA has reviewed the report.
Attachment A - waste analysis plan
- The petitioner objects to EPA's deletion from the Waste
Analysis Plan of six exceptions to CWM's pre-acceptance
procedures. The petitioner claims that this change will
substantially impair its ability to respond promptly to
hazardous waste cleanup and disposal problems throughout the
Region. The petitioner states that the Agency apparently
incorrectly assumed that CWM accepts these wastes without
obtaining a detailed chemical and physical analysis of the
wastes as required by 40 CFR 264.13(a)(1). The petitioner
further argues that the RCRA regulations require the facility
accepting hazardous wastes to "obtain" such an analysis at some
point, but not necessarily to "perform" such an analysis itself
or have that analysis in hand before waste is received at the
facility. Finally, the petitioner argues that this change
would preclude CWM from receiving an unscheduled load of waste
at the facility.
The petitioner objects to the conditions concerning the Waste
Analysis Plan which are in need of changes to maintain
conformity with the change to the conditions requested in item
1 above under "Hazardous Waste Landfill."
9 of 9
-------
PERMIT APPEAL FACT SHEET
Facility: Hoechst Celanese Corporation
Greer, South Carolina
SCD 097 631 691
RCRA Appeal No. 87-13
Petitioner: Hoechst Celanese
Petition Filed: July 1, 1987
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: RFI conditions are too vague
RFI conditions are not justified
Definition of solid waste management unit
Due process
Other corrective action issues (definition of "contamination")
Procedural issues
Level of detail
Suonary of Petition:
The petitioner raised issues relating to the corrective action section
of the permit and several general permit issues.
• Corrective Action Issues. The petitioner believes that the RFI
conditions are too vague. Hoechst Celanese also contests the RFI's
definition of solid waste management unit (SWMU) and the definition of
"contamination."
Hoechst Celanese believes that the RFI permit conditions in Part II
of the permit are so broad, indefinite, and completely open ended
as to make it impossible for the company to know how to comply with
the permit. Consequently, Hoechst Celanese believes that it has
been effectively denied due process: a permittee may challenge
permit conditions within 90 days after permit issuance, but Hoechst
Celanese contends that Part II is worded so generically that site-
specific permit conditions will not be known until after the 90
days has passed.
Hoechst Celanese contends that the RCRA Facility Investigation
(RFI^ is not justified. The petitioner believes that the Regional
Administrator (RA) ignored the findings of the RCRA Facility
Assessment (RFA) by failing to use them to focus more narrowly the
scope of the RFI.
- The RFA concluded that only soil sampling should be required
around the main waste oil tank; the RFI required investigation
for all media pathways for this tank.
1 of 2
-------
87-13
- Similarly, the permit requires Hoechst Celanese to conduct a full
RFI for the portable waste oil storage tanks, while the RFA
concluded that there was no release or threatened release to the
environment from the tanks.
Hoechst Celanese objects to the definition of SWMU contained in the
permit, for it does not duplicate the language contained in the
preamble to the July 15, 1985, codification rule or the RFI
guidance document.
- The petitioner argues that a chemical storage lagoon for which
Hoechst Celanese certified closure on November 10, 1982, should
be handled under a post-closure permit, rather than be included
in the operating permit as a SWMU. subject to §3004(u) corrective
action.
- Hoechst Celanese also maintains that the permit fails to provide
clearly that effluent discharges from an NPDES-permitted waste
treatment plant cannot be defined as a SWMU in the receiving
water.
- Finally, the petitioner objects to defining each SWMU separately
and requests that some units be grouped for the purposes of
conducting the RFI.
Hoechst Celanese states that it is a violation of due process to
require Hoechst Celanese to submit the final RFI report within 30
days after receiving the Region's comments on the draft report.
The petitioner objects to a definition of "contamination" in the
permit based on exceedance of background levels, rather than levels
established as protective of human health and the environment (such
as alternate concentration limits), as a trigger for corrective
action under §3004(u).
General Permit: Issues. The petitioner believes that the permit goes
into too much detail and is not procedurallv appropriate.
The petitioner feels that the level of detail in the permit is
excessive, for it specifies the use of SW-846 test methods, even
when these analytical methods are inappropriate for some of the
substances on Appendix VIII.
The petitioner raises a. procedural issue when it states that the
permit fails to allow Hoechst Celanese to substitute the list of
constituents in the proposed Appendix IX for those in Appendix
VIII. if the Appendix IX regulations are made final during the term
of the permit.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Ecolotec, Inc.
Dayton, Ohio
OHD 980 700 942
RCRA Appeal No. 87-14
Petitioner: City of Dayton
Petition Filed: July 30, 1987
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: Facility location
Ground-water monitoring and sampling requirements
Summary of Petition:
The petitioner contests permit conditions in two general areas: ground-
water monitoring and sampling requirements, and facility location.
• Ground-Water Monitoring and Sampling Requirements. The City of Dayton
contends that the ground-water monitoring requirements established in the
permit. which call for complete sampling only once every three months,
are inadequate to detect conta"iination.
• Facility Location. The City of Davton believes that the location of the
Ecolotec facility poses an unacceptable risk of contamination to the
public water supply for Davton and the surrounding areas of Montgomery
County. This petitioner states that the facility is located in the
recharge zone of the aquifer which serves the public water supply, and is
close to several of the City's wellheads.
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Interstate Lead Company, Inc. (ILCO)
Leeds, Alabama
ALD 041 906 173
RCRA Appeal No. 87-16
Petitioner: ILCO
Petition Filed: September 30, 1987
Status of Petition: Appeal awaiting disposition by the Administrator
Issue: Compliance with liability requirements
Sumary of Petition:
ILCO's operating permit for its Leeds, Alabama facility, a secondary
smelting operation, was denied, because ILCO was unable to demonstrate in its
Part B submission compliance with the liability requirements found at 40 CFR
270.14(bH17). These regulations state that documentation of financial
assurance for liability must be included in the Part B permit application.
After its permit was denied, ILCO submitted a new certificate of coverage for
sudden liability insurance in the requisite amounts and established an amended
trust fund agreement for closure and post-closure care of its regulated units.
To date, ILCO still is not in compliance with financial assurance requirements
for nonsudden liability coverage.
ILCO asserted in its petition that the availability of insurance for
secondary lead smelters is an important policy consideration necessitating the
Administrator's review, given the contribution that such operations make to
resource conservation and recovery. ILCO did not dispute the fact that it
failed to demonstrate compliance with the requirement, nor did ILCO assert
that the decision to deny the permit was clearly erroneous or that it involved
an exercise of discretion requiring review (based on §124.19(a)(l) and (2)
criteria for permit review.)
Although not raised in its petition, ILCO submitted a variance request to
the Alabama Department of Environmental Management (ADEM) for liability
coverage for nonsudden accidental occurrences, based on the "unavailability"
of nonsudden insurance for secondary smelters. This request was made at the
close of the public comment period, too late for consideration with the permit
application. In addition, ILCO at one point had claimed that each of its
regulated units was a waste pile, and that these waste piles were not subject
to liability coverage for nonsudden accidental occurrences, as indicated by 40
CFR 264.147(b).
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Pacific Gas and Electric Company (PG&E)
Pittsburg, California
CAT 080 Oil 695
RCRA Appeal No. 87-18
Petitioner: PG&E
Petition Filed: November 2, 1987
Status of Petition: Petition withdrawn. PG&E withdrew its petition after
Region IX issued a permit modification, effective
April 26, 1988.
Issues: Corrective action issues (ground-water terminology; ground-
water monitoring parameters)
Procedural issues
Miscellaneous other issues (surface impoundment retrofitting)
Sunnary of Petition:
The petitioner outlines two groups of issues to be reviewed: issues
concerning the technical parameters of the corrective action section of the
permit (the RFI), and procedural issues. FG&E also contests the surface
impoundment retrofitting requirement of the permit. Individual issues
within each group are summarized below.
• Corrective Action Issues. The petitioner is contesting the technical
requirements of the permit and the ground-water monitoring parameters.
PG&E states that the ground water under the facility is tidally
influenced, and fluctuations are sufficient to reverse the
direction of ground-water flow. Consequently, PG&E asserts that it
is technically inappropriate for the ground-water terminology to
reference "upgradient" and "downgradient" locations, and should
instead cite "background" and "point of compliance", respectively.
Another corrective action issue raised by the petitioner pertains
to the extensive list of parameters required for ground-water
monitoring of the facility's surface impoundments during the first
year after permit issuance. The petitioner contends that although
plant operations have changed slightly over the 20-year life of the
surface impoundments, the units were constructed to handle a
specific waste stream. PG&E believes that leakage from the surface
impoundments would be indicated by monitoring the parameters
characterizing the specific waste stream.
• Procedural Issues. PG&E, after reviewing the applicable sections of 40.
CFR Part 124, was confused as to the alternatives that were legally
available to PG&E for requesting a review of the final permit decision.
1 of 2
-------
87-18
PG&E, therefore, requested an evidentiary hearing, pursuant to 40 CFR
124.74. If a request for both a petition to review and an evidentiary
hearing is not .appropriate, PG&E requests to be advised of their
available alternatives as soon as possible.
Retrofitting Surface Impoundments. The permit requires that four
surface impoundments be retrofitted by October 1988, in order to meet
the November 8, 1988, retrofitting deadline. PG&E believes that the
90-day time period allowed for construction and certification of
retrofitted surface impoundments will not allow sufficient time to
ensure proper installation of the new design. PG&E has stated that if
they are unable to complete the final retrofitting by the November
deadline, they will refrain from using the surface impoundments until
the units are triple-lined and the construction drawings and
certification of the actual liner installation quality
assurance/quality control (QA/QC) procedures are approved. If that
should be the case, PG&E requests that the facility be considered in
compliance with the permit and be allowed to continue using the units
once construction is completed and certification is approved.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Shell Oil Company, Deer Park Manufacturing Complex
Deer Park, Texas
TXD 067 285 973
Permit Appeal No. 87-19
Petitioner: Shell Oil Company
Petition Filed: December 16, 1987
Status of Petition: Appeal awaiting disposition by the Administrator
Issue: Surface impoundment retrofitting variance
Sumary of Petition:
Shell is petitioning the Administrator to review a decision to deny its
application for an interim status surface impoundment retrofitting variance
under §3005(j)(3) for three surface impoundments identified as activated
sludge biotreater basins. Prior to EPA's decision, the petitioner filed with
the Texas Water Commission a Part B permit application that requests the
continued operation of the blotreaters beyond November 8, 1988, without
retrofitting the units, which the petitioner believes are entitled to the
statutory exemption of §3005(j)(3). The petitioner claims that EPA's decision
to deny the application for the statutory exemption effectively denies Shell's
permit application. Therefore, the petitioner argues that EPA's decision is
subject to the procedures set forth in 40 CFR Part 124.
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Monsanto Agricultural Company
Luling, Louisiana
LAD 001 700 756
RCRA Appeal No. 88-1
Petitioner: Monsanto
Petition Filed: January 15, 1988
Status of Petition: Region response postponed pending settlement negotiations
Issues: RFI conditions are not justified
Definition of solid waste management unit
Due process
Other corrective action issues (use of term "disposal areas;" format
of draft report; detail in RFI work plan)
Procedural issues
Joint permitting
Suonary of Petition:
Monsanto's petition identifies four broad classes of objections:
provisions that Monsanto claims are inappropriate and should be deleted from
the permit; differing interpretations of statutory and regulatory authorities;
provisions in the State portion of the RCRA permit; and wording changes and
other clarification of terms. Many of these conditions relate to general and
specific corrective action requirements.
• Corrective Action Requirements. The petitioner is contesting the
incorporation of the definition of "SWMU" in the permit, and corrective
action requirements based on identified SWMUs at the facility.
Monsanto claims that based on the results of the RCRA Facility
Assessment and other relevant data, the preliminary report and the
RFI should be limited in scope to only one of the five SWMUs
currently listed in the permit. Monsanto argues the RFA concluded
that further investigation was needed at only one of the SWMUs,
i.e., the closed landfill. In addition, Monsanto requests that the
terms "other service areas" and "unit/disposal areas" be deleted
from the permit, for they imply that the Agency has authority over
areas other than SWMUs.
Monsanto objects to the inclusion of a definition of SWMU in the
permit, because the term SWMU is not defined under RCRA nor under
the regulations. but is instead discussed only in the preamble to
the HSWA codification rule. Monsanto argues that it is
inappropriate to define the term "SWMU" in a permit when there has
been no attempt to adopt it through the rulemaking process which
subjects the proposed language to public notice and comment.
1 of 3
-------
88-1
Monsanto objects to the administrative review process laid out in
Section IX.F of the permit because it creates administrative review
procedures for the RFI work plan that are contrary to existing law
(42 U.S.C. §6976) and which do not give Monsanto its right of due
process should Monsanto object to the EPA's comments on the work
plan. In essence, Monsanto argues that it is allowed to object to
deficiencies in the work plan identified during EFA's reviews, but
if disagreements cannot be worked out, then the EPA version becomes
the RFI work plan and must be "immediately" initiated by Monsanto.
Monsanto requests that Section VIII.J.2, Corrective Action Program,
be deleted. No reason is given for this request.
Monsanto argues that the term "disposal area" duplicates the intent
of the term "solid waste management unit," and so the use of the
term "disposal area" in addition to the term "unit" in the RFI
requirements section of the permit is redundant and potentially
confusing.
-- . Monsanto objects to providing EPA with a preliminary RFI report on
facility conditions in the format specified in the permit, because
Monsanto has already provided this information in another format.
Monsanto argues that permit conditions based on EPA's draft RFI
guidance require "unnecessary," and "inappropriate" detail,
particularly in developing the RFI work plan and reporting data, and
do not have the force of regulation or law.
Procedural Issues. Monsanto requests clarification of the effective date
of the permit, and its duty to provide information at the request of the
Administrator. Each of these issues is described in more detail below:
The signature page of the permit refers to the effective date of the
permit, whereas other sections of the permit refer to Monsanto's
responsibilities based upon the permit issuance date. Since the
effective date is specified in the permit, Monsanto interprets 40
CFR 124.15(b) to mean that any reference contained in the permit to
the date of issuance means the effective date. Monsanto requests
that this permit be clarified.
Monsanto states that the current wording in Section II.D.7. Duty to
Provide Information, does not provide Monsanto with reasonable
safeguards to contest the relevancy of information requested.
Monsanto argues that the Administrative authority should not have
the sole discretion to determine what is relevant, and thus,
suggests that the word "relevant" be included between the words
"any" and "information."
2 of 3
-------
88-1
State Permit. Monsanto has a number of comments on the State portion of
its permit:
Monsanto states that certain conditions of the final State permit
were not presented in the draft permit, including: tank inspections
and testing (V.B.3(b),(d), and (e); and ground-water protection
standards (VIII.C.3).
Monsanto has a number of objections pertaining to the State portion
of the permit per interpretation of authorities. including:
Description of effluent treatment pond and special conditions
for tanks (fact sheet);
Compliance schedules (II.D.15(b) and (c));
General waste analysis and arrangements with local authorities
(III.C.I and 2 and III.K.5);
Special conditions applicable to tanks (V.E.I and 5);
Storage in impoundments (VII.A.2);
Applicability of ground-water protection (VIII.A);
Hazardous constituents, parameters and concentration limits
(VIII.D);
Documents to be maintained at the facility (II.D.21(b)); and
Compliance schedules (II.D.15(c)).
Monsanto has a number of objections pertaining to the State portion
of the permit per wording changes and other clarification of terms.
including:
Duty to provide information (II.D.7);
Required equipment and aisle space (III.K.I and 4);
Tank inspections and testing (V.B.3(b), (d), and (e));
Ground-water protection standards (VIII.C.3);
Hazardous constituents, parameters and concentration limits
(VIII.D); and
Permit actions (II.B).
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Utah Power and Light (UP&L)
Idaho Falls, Idaho
IDD 006 602 631
RCRA Appeal No. 88-2
Petitioner: UP&L
Petition Filed: March 25, 1988
Status of Petition: Region response postponed pending settlement negotiations
Issues: RFI conditions are too broad
Miscellaneous other issues (force majeure provision; non-compliance
situations, incorporation of applicable standards; ground-water
monitoring programs)
Sunaary of Petition:
UP&L objects to certain conditions in a post-closure permit issued
jointly by EPA and Idaho Department of Health and Welfare (IDHW) to its Pole
Treatment Yard in Idaho Falls, Idaho. UP&L utilized this facility to treat
wooden electrical poles with creosote.
• Corrective Action Issues. The permit requires corrective action to
address low level soil contamination in areas where creosote-treated
poles were cured and stored. EPA considers this area a SWMU based on the
fact that routine and deliberate releases occurred in the area, and that
soil sampling results indicate that creosote releases did occur in this
area The petitioner believes that corrective action requirements should
be eliminated from the permit. Although UP&L does not argue that
drippage of creosote from poles that were stored in this area may have
created an area that could be interpreted to be a SWMU. UP&L objects to
the corrective action requirement on two points:
There is no finding that the corrective action specified in the
permit is necessary to protect human health and the environment; and
There is no finding that a there is a release from a SWMU. The
petitioner states that drippage of creosote from the poles that were
stored in the area does not constitute a "release" from a SWMU
subject to §264.101. To the contrary, the petitioner states that
any drippings that may now be in the soils are so tightly bound up
in the soil that they cannot possibly be migrating.
• Force Majeure Provision. The petitioner argues that the permit
improperly excludes a force majeure provision which would excuse the
facility, under certain circumstances, from complying with all of the
permit conditions.
1 of 2
-------
88-2
Non-Compliance Situations. The petitioner argues that the permit
improperly treats reasonable departures from the permit and the permit
application as non-compliance situations. For example, in the
Introduction section of the permit, any inaccuracy that the agencies find
in the application with regard to how the facility's ground-water
treatment plant is constructed and operated subjects UP&L to termination
of the permit or an enforcement action. UP&L argues that while the
permit application represents the best information at the time about the
design and operation of the plant, that the operational aspects of the
plant will continue to evolve as the facility operators gain more
experience with the plant. UP&L does not believe that it should be held
to the strict terms of the permit in this situation.
Incorporation of Applicable Standards. The petitioner states that the
permit improperly incorporates by reference certain "applicable"
regulations. UP&L argues that by incorporating these regulations, the
permit no longer is a "standalone" document, but becomes a document which
requires cross-referencing and incorporation through cross-referencing of
additional information.
Ground-Vater Monitoring Program. The petitioner believes that the permit
improperly includes two inconsistent ground-water monitoring programs:
one program is described in Part III of the permit (ground-water
monitoring to be implemented during the post-closure period), and
Attachment B. For example, the point of compliance wells, the flow rate
and direction calculations, and the parameters to be monitored are
different between the two programs.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Navajo Refining Company
Artesia, New Mexico
NMD 048 918 817
RCRA Appeal No. 88-3
Petitioner: Navajo
Petition Filed: March 25, 1988
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: RFI conditions are too vague ,
RFI conditions are not justified
Joint permitting
Other corrective action issues (submittal of preliminary report)
Sumary of Petition:
The petitioner is contesting issues relating to the corrective action
section. These issues are outlined in greater detail below.
• Corrective Action Issues. Navajo is contesting three conditions of the
RCRA Facility Investigation (RFI): corrective action for off-site
units, submittal of a preliminary report, and release verification.
-- The petitioner believes that the scope of the RFI is too broad, for
it requires Navajo to perform an RFI and a Corrective Measures Study
(CMS) at off-site wastewater treatment units identified as 3
Evaporation Ponds 1, 2, and 3, separated from the facility by both
public and private lands. The ponds are connected with the facility
by the 3 Mile Ditch, an old conveyance system for which Navajo has
no continuous, established legal title. Navajo contests this
condition on several grounds:
- The ditch itself is not controlled by Navajo. as it is open to use
by adjoining landowners and the public. Navajo argues, therefore,
that it is "factually erroneous" for Region VI to contend that the
evaporation ponds are part of the permitted facility, subject to
§3004(u) corrective action.
- Navajo contends that §3004(v) authority was intended only to deal
with off-site contamination originating from on-site units.
Navajo argues that any "release" of hazardous constituents would
originate from the off-site units, and that any "discharge" from
the refinery's on-site units to the wastewater treatment system
would not in themselves constitute a "release."
1 of 2
-------
88-3
- Finally, the petitioner contends that the 3 Mile Ditch and
Evaporation Ponds have been actively regulated since 1974 by the
New Mexico Oil Conservation Division, which directed a
comprehensive ground-water and surface water impact analysis.
Navajo argues that HSWA corrective action is "regulatorily
redundant," and would potentially conflict with State-directed
corrective action.
Navajo believes that the scope of the RFI is too broad also per
permit conditions relating to release verification at the North
Colony Container Storage Area. Specifically, Navajo contests the
permit directive to collect analytical data identifying the location
and sources of "suspected releases" associated with this storage
area. Navajo argues that the findings of the RFA indicate that the
container storage area was an unlikely source of hazardous waste or
constituent release. The petitioner contends that the permit
directive is unduly vague in failing to identify the nature of the
"suspected release" and seems to conflict with the RFA report and
Region VI's response to comments (Region VI responded to comments on
the storage unit by stating that the North Colony Container Storage
Area "is conditionally removed from the full RFI Workplan" provided
Navajo verifies that no releases have occurred). Navajo requests
that this condition be eliminated or appropriately reformed to be
more specific.
As another corrective action issue, Navajo contests the RFI
requirement to submit a preliminary report apart from the RFI
workplan. Navajo contends that all background information requested
to be included in the preliminary report is already included in the
Part A and B permit applications, as well as other extensive RCRA
file materials such as the RCRA Facility Assessment (RFA)
Preliminary Assessment Report. Navajo argues that submittal of
another preliminary report would impose burdensome information
requests "which detract from limited manpower resources that could
be more effectively concentrated on the RFI workplan itself."
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Chemical Waste Management Inc. (CWM)
Kettleman Hills, California
CAT 000 646 117
RCRA Appeal No. 88-4
Petitioner: CWM
Petition Filed: April 6, 1988
Status of Petition: Region response postponed pending settlement negotiations
Issues: Due process
Procedural issues
Level of detail
Miscellaneous other issues (closure schedule, vague language, use of
maximum contaminant levels)
Sumaxy of Petition:
CWM objects to EPA's imposition of numerous permit conditions on the
grounds that they: (1) go beyond EPA's statutory and regulatory authority
under RCRA; (2) have been imposed without proper rulemaking procedures and
without required findings; and (3) have not been supported by EFA in a
statement of basis explaining conditions in the final RCRA permit. Specific
issues are as follows:
• Due Process and Use of the Omnibus Provision. CWM states that EPA, by
relying on the authority of §270.32(b) and §3005(c)(3) for incorporation
of additional permit conditions. including compliance with other
conditions based upon guidance documents, "subverts" the administrative
rulemaking process under RCRA and the Administrative Procedure Act (APA),
and denies CWM due process. Section 270.32(b), based on the omnibus
provision of §3005(c)(3) of RCRA, as amended by HSWA, limits EPA's
authority to impose additional permit conditions to those situations
where necessary to protect human health and the environment. CWM states
that EPA has made no finding that such additional conditions are
necessary at Kettleman Hills (i.e., technical evidence does not show that
the use of 40 CFR Part 264 regulations alone is inadequate to protect
human health and the environment at the facility). CWM suggests that EPA
has neither documented its rationale for the additional permit
conditions, nor applied appropriate criteria to evaluate health and
environmental risks at the facility.
CWM finds permit conditions VI.G.2, VI.G.3, and Attachment VI-C
(completion of a Corrective Measure Study (CMS)), objectionable,
because (1) they are based on EPA draft guidance which has not been
subjected to the required rulemaking process; and (2) they establish
specific conditions and criteria for a CMS before a study is even
determined to be necessary. To establish the scope and criteria of
1 of 4
-------
88-4
a CMS prior to permit modification (which would follow the
procedures of 40 CFR 270.41) suggests that the permit modification
proceeding will be meaningless.
Other specific conditions relating to use of the omnibus provision
include :
Prohibition against acceptance or management of non-hazardous
industrial waste (II.B.l.e and II. B. 2). CWM argues that
neither §264.13(b), §270.32(b) (1) , or any RCRA statutory
provision or regulation authorizes or prohibits CUM from
servicing the market of non-hazardous , non- municipal wastes.
CWM also maintains that EPA can not invoke protection of human
health and the environment as a justification for its position.
CWM argues that EPA is without authority to require containment
systems fo Arim decant units staging and processing areas
specified in the permit, because 40 CFR 270.175 concerns only
containment systems for storage areas , not for temporary drum
marshalling or loading areas. In addition, CWM argues that EPA
has not justified the need for monthly reporting on the drum
decant unit (which is not required by any regulation) , nor
provided any reason for singling out a specific waste
management unit on which a facility must provide additional
information.
CWM objects to the inclusion of inspection and contingency plan
requirements beyond those which CWM believes are authorized by
RCRA, and the provision of permit conditions which impose
"redundant" inspection requirements. For example, the final
permit identifies inspection elements that are not RCRA- related
(e.g., dolly- down areas, response vehicles), and contingency
plan elements (e.g. , earthmoving and site vehicles) that CWM
does not consider emergency equipment.
CWM does not believe that §§264.33 or 264.73 provide EPA with
the authority to require that testing and maintenance of
contingency plan equipment be documented in the facility
operating record.
Annual recertification of accepted waste streams. The final
permit requires that CWM repeat the pre- acceptance evaluation
of accepted waste streams at least annually, while
§264. 13 (a) (3) requires only that the analysis be "repeated as
necessary to ensure that it is accurate and up-to-date." CWM
believes that a biennial recharacterization would be
sufficient, or that an annual recertification program would
need at least a six month phase -in period.
2 of 4
-------
88-4
Procedural Issues. Certain contested permit provisions were not included
in the draft permit but instead appeared for the first time, without
providing CUM notice or opportunity for comment, in the final RCRA
permit:
Mandatory analysis of all "special materials" identified in the
waste analysis plan (II.C.l.c);
Disaster response plan for transportation-related releases of
hazardous waste within the City of Avenal, California (II.I.7);
Permit conditions which require CUM to remove from service any
landfill or pond at which the vadose zone monitoring system detects
any level of moisture with any level of hazardous waste constituents
or indicator parameters; and
Permit provisions requiring CUM to compare sampling data for metal
parameters with ground-water protection standards, and which
expressly denied CUM the opportunity to demonstrate that errors in
sampling, analysis, or evaluation caused statistically significant
increases in hazardous constituent levels in ground water (CUM
believes that this last provision is in direct conflict with 40 CFR
264.98(i)).
Level of Detail. CUM claims that EPA incorporates into the facility's
final permit detailed requirements that are not fully justified in the
permit's fact sheet, including:
Required aisle space in the drum storage unit and PCS
flushing/storage unit (Ill.C.l.b and III.J.3). EPA has provided no
explanation of basis nor reasons for establishing a 4-foot aisle
requirement in the final permit.
The permit requires that ground-water samples be analyzed according
to those methods specified in SW-846. CUM objects due to the
uncertainty in the reliability of SU-846 methods, and requests that
it be allowed to use other EPA-approved methodologies for analyses
(e.g., EPA methods 624 and 625).
Height limitation in leachate detection, collection, and removal
systems (IV.A.8.a). Immediate removal of all liquids out of the
leachate detection, collection and removal system immediately
following a rise in the liquid level to a height of thirty
centimeters is burdensome, inconsistent with the proposed liner and
leak detection rule (52 FR 20218), physically impossible from a
technical point of view, and imposed without explanation or
reasoning. CUM also argues that, based on the geographic and
hydrogeologic characteristics at the facility, there is no risk to
public health and the environment from the existence of liquid in
the leachate detection, collection and removal system.
3 of 4
-------
88-4
Required cessation of operation of waste management units when
certain leachate levels are collected (IV.A.S.c and Attachment
IV. B). CWM argues that this provision is inconsistent with EPA's
proposed regulations for leachate collection and removal systems (52
FR 20218) , and that there is no Justification in the administrative
record to support the requirement in the final permit for a complete
shutdown of operations when these minimal leachate levels are
reached. Along the same lines, CWM objects to other permit
conditions requiring CWM to (1) empty immediately all free liquids
from any surface impoundment in which there cannot be maintained
less than one foot of liquid in the leachate detection, collection,
and removal system; and (2) remove from service any landfill or pond
which detects any level of moisture with any level of hazardous
waste constituents or indicator parameters in the vadose zone
monitoring system.
Closure Schedule of the Temporary Container Storage Unit and Interim
Stabilization Unit. These permit provisions involve a complex array of
Agency approvals that must be received prior to the operation of the
permanent waste management units, while requiring the closure of the
corresponding temporary units before the permanent units are operational.
To preclude the possibility that the interim units will have to be closed
before the permanent units become operational, CWM has requested that the
permit conditions be revised to explicitly provide that the closure
schedule allow adequate time for the orderly transition of drum and
stabilization operations to their new facility areas.
Vague Language. CWM objects to vague language in the retrofit provisions
regarding units that do not maintain a 30-centimeter (1 foot) maximum
liquid level. The final permit requires retrofitting or closure
activities if existing pumps cannot "properly" operate or "properly"
drain. At the same time, the permit does not provide objective standards
from which to determine whether such operations or pumping is proper.
Use of Marrlimm Contaminant Levels (MCLs) . CWM objects to the use of MCLs
in determining whether or not sampling data indicate the presence of
hazardous constituents in ground water under the facility. MCLs are
standards established for drinking water at the consumer tap; CWM argues
that MCLs are inappropriate for comparisons at monitoring wells in a non-
drinking water aquifer.
4 of 4
-------
PERMIT APPEAL FACT SHEET
Facility: CID
Calumet City, Illinois
ILD 010 284 248
RCRA Appeal No. 88-5
Petitioner: Waste Management of Illinois Inc. (WMII)
Petition Filed: April 11, 1988
Status of Petition: Region response postponed pending settlement
negotiations
Issues: RFI conditions are too vague
RFI conditions are not justified
RFI conditions are technically inappropriate
Due process
Other corrective action issues (off-site monitoring; trigger
levels)
Procedural issues
Level of detail
Joint permitting
Miscellaneous other issues (manifests; testing waste shipments)
Summary of Petition:
WMII is contesting the terms of the permit in three major areas:
investigatory and corrective action requirements, waste analysis
requirements, and waste restriction conditions. Each of these major areas
is discussed with greater specificity below.
• Investigatory and Corrective Action Requirements. The permit now
requires WMII to submit for approval and implement an RFI Phase I
Workplan, including ground-water monitoring around the SWMUs at the
facility. If ground-water monitoring discloses any contamination above
baselines (practical quantification units (PQLs) for any constituent
not present in background and for statistically significant levels of
any constituent detected at background), WMII must submit for approval
and implement a Phase II sampling plan for determining the rate and
extent fo contamination.
WMII argues that certain RFI permit conditions are too vague.
- Section IV.l.b.(2)(a) requires WMII to monitor the ground water
for "dissolved solids calculated" without defining what
"dissolved solids calculated" are. The condition also refers to
Task A.5.d. which does not exist in Attachment I. Finally, WMII
does not understand certain phrases used in the last sentence of
this paragraph, including "priority list of parameters."
1 of 4
-------
88-5
- Section IV.l.b.(2) requires quarterly sampling, but does not make
clear how the four sets of samples are to be used, and does not
provide explicitly for resampling and statistical evaluation of
multiple samples.
- Section IV.l.b.(2)(d)(ii)(A) requires WMII to develop a method
for comparing observed concentrations of hazardous constituents
in a particular stratum (Silurian Dolomite) to background levels.
EPA has provided no guidance as to what it expects this submittal
to encompass.
WMII argues that the RFI does not provide information that would
allow the Agency to conclude that a contaminant plume was released
from a SWMU.
- The CID facility is located in an historically heavily
industrialized urban area, and is adjacent to a dredge and fill
site owned by the City of Chicago and property owned by Conrail.
WMII argues that the scope of work for the RFI does not provide
WWII an opportunity to prove that contamination came from off-
site versus coming from SWMUs.
- In addition, Phase II sampling is required if any contamination
is found during Phase I monitoring--the presumption is that the
contamination originated from the SWMUs. WMII argues that such
monitoring does not provide EPA with sufficient justification for
determining that a release has occurred.
- WMII proposes that, on remand to the Region, an entirely
different approach be taken to these investigations; namely, that
WMII would investigate the practicality and cost of installing an
additional clay barrier through the surface sand (the Dolton
Sand) near the SWMUs and installing a drainage and pumping system
to remove water in the Dolton Sand.
WMII contends that certain ground-water monitoring requirements are
technically inappropriate.
- For example, the permit requires ground-water monitoring of
underlying glacial till. WMII states that the flow of water
through the till is predominantly vertical and not horizontal,
and that wells constructed in the till will be difficult to
develop and sample due to the medium's very low hydraulic
conductivity. The permit requires the evaluation of these wells
for "informational purposes" only, and provides no method for
analysis of any levels of contamination which may be found. WMII
believes that this "arbitrary collection of data" should be
stricken from the permit.
2 of 4
-------
88-5
- In addition, WMII contends that it is improper for the permit to
require use of SW-846 methods for the analysis of ground water.
since these tests were designed for the analysis of solid waste.
The corrective action requirements of the permit effectively
provide no means for due process review of the Agency's decision on
the RFI Phase II sampling plan for determinning the rate and
extent of contamination that CID must develop.
WMII objects to several other corrective action conditions as
follows:
- In order to determine the nature and extent of a plume of
contamination during Phase II sampling, WMII objects to
potentially having to construct wells on land that it does not
own (the Chicago landfill site) or in surrounding waterways.
- WMII requests that PDMLs be used for purposes of comparison
rather than PQLs.
General Facility Conditions/Waste Analysis. WMII objects to conditions
which require analyses of wastes at an operating landfill to ensure
compliance with restrictions on disposal of liquids and certain
specified wastes. WMII believes the following conditions are ambiguous
or inaccurate, and require clarification.
As a joint permitting issue, WMII requests that the permit clearly
state that compliance with Illinois regulations which test for the
absence or presence of free liquids constitute compliance with EPA
requirements. which now require use of the Paint Filter Test. WMII
states that EPA guidance recommends testing only if it is not
obvious upon visual inspection that the waste does or does not
contain free liquids. In addition, WMII believes that the waste
analysis plan approved by Illinois EPA should satisfy the Federal
requirements.
The petitioner objects that the level of detail in the permit is
excessive, for the permit requires WMII to test each wastestream to
be landfilled at least quarterly.
The petitioner raises the following miscellaneous other issues:
- The petitioner objects to the condition requiring CID to examine
manifests to determine whether waste shipped is prohibited from
land disposal. WMII states that generators are not required to
provide RCRA waste codes on the Federal manifest forms. WMII
proposes, instead, that they be allowed to rely on the
certification which the generator must provide, which includes
the RCRA waste codes and certifies compliance with 40 CFR Part
268 (i.e., the land disposal restrictions).
3 of 4
-------
88-5
- WMII objects to the schedule for testing waste shipments and
contends that it is unclear whose responsibility it is to perform
the analyses -- CID's or the generators'.
• Waste Restrictions. Permit conditions IV.E and IV.H restrict WMII's
ability to place certain wastes in the landfill after November 8, 1988.
Permit condition IV.L allows certain wastes to be disposed of in the
landfill between the dates of July 8, 1987, and July 8, 1989, only
under certain conditions. After July 8, 1989, condition IV.K allows
these wastes to be disposed only under more stringent conditions.
These dates are derived from the requirements of §§3004(d) and (e) and
40 CFR §§ 268.1(c)(3); 268.30(b); and 268.32(e). Although it is
unclear why WMII included this provision in its appeal. WMII requests
that if these deadlines are extended or CID is exempted pursuant to 40
CFR 268.l(c). that these dates in the permit be so extended and that
the permit specify these allowable extensions (procedural issue).
Finally, the petition discusses a letter from EPA Region V to the
Illinois EPA (IEPA), in which the Region requested that the State
incorporate certain operating conditions in the State portion of the permit
(WMII did not specify what these conditions were). This letter stated that
should IEPA choose not to incorporate the comments, EPA could still enforce
them as permit conditions under RCRA §3008. WMII has sued EPA for a
judgment that this letter is invalid. While WMII believes that the court
properly has jurisdiction over this issue, WMII is incorporating in the
petition all the allegations set forth in its complaint should Region V
prevail in its view that the letter is, in fact, part of the permit
(procedural issue).
4 of 4
-------
PERMIT APPEAL FACT SHEET
Facility: Chem-Security Systems, Inc. (CSSI)
Arlington, Oregon
ORD 089 452 353
RCRA Appeal No. 88-6
Petitioner: Chemical Waste Management Inc.
Petition Filed: April 14, 1988
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: RFI conditions are technically inappropriate
Other corrective action issues (modification of cost estimate)
Procedural issues
Level of detail
Miscellaneous other issues ("harmless" condition; record of wastes)
Sunnary of Petition:
CSSI objects to ten permit conditions, a plate, and a table on the basis
that these materials demonstrate that the Agency and State have made a clearly
erroneous finding of fact or conclusion of law and/or overstepped the
statutory and regulatory authority to impose such conditions. CSSI believes
that other contested conditions highlight important policy considerations that
the Administrator should review in his discretion. Each of these contested
provisions is discussed below.
• Corrective Action Ground-Water Monitoring Network. Permit conditions
IX.A.(1), IX.A.(2), IX.B.(7), Plate 1, and Table 2 require CSSI to
construct and operate a ground-water monitoring network specified by EPA
rather than the network submitted in CSSI's Part B permit application.
CSSI argues that EPA's waste management area designation is
incorrect based on hvdrogeological characterization data on record:
and that the well distances required by EPA, based on modeled
results, are without factual basis.
CSSI also requests that the Administrator reopen the administrative
record regarding requirements for the location of new ground-water
monitoring wells.
• Modification of Cost Estimates. Sections II.M.(5) and II.M.(6)
conditions modify the post-closure care cost estimates submitted by CSSI
in its Part B application in Appendix C to reflect the expanded ground-
water monitoring network which the Agency seeks in the permit under
Sections IX.A.(1), IX.A.(2), Plate 1 and Table 2. CSSI argues that the
imposition of these revised costs prior to a determination of the
validity of EPA's ground-water monitoring network would be an abuse of
its discretion.
1 of 3
-------
88-6
Procedural Issues. CSSI argues that EPA modified the grouping of certain
waste management units at the facility between the draft and final
permit, without providing CSSI the opportunity to comment on EPA's
decision.
Equivalency Demonstration for Clean Closure. Section II.J.(14)(b)
requires CSSI to demonstrate that all 14 units that clean closed under
the interim status requirements of 40 CFR Part 265 (and were certified by
the appropriate agency) were clean closed in a manner equivalent to the
requirements of 40 CFR Part 264. This equivalency demonstration must be
submitted within 120 days from the effective date of the permit for each
of the clean closed units. If the equivalency demonstration fails to
document that clean closure of any of these units was not equivalent to
40 CFR Part 264 standards, the Agency may require a post-closure permit,
including corrective action, for that unit.
CSSI argues that EPA's decision to require recipients of a Part B
permit to conduct additional sampling and analysis of all previously
clean closed units constitutes an erroneous application of the law
and an abuse of discretion. The Agency has pointed out no factual
basis to show that there is: (a) any reason to review the way these
units were closed: (b) any indication that they do not meet the
closure requirements of 40 CFR Part 264, or (c) any suggestion that
they may now require a post-closure permit.
CSSI asserts that imposition of a schedule for submittal of the
equivalency demonstration is an arbitrary and erroneous exercise of
EPA's discretion. Section 270.l(c) does not specify a submittal
deadline with respect to the equivalency demonstration, but rather
allows a schedule which is technically feasible. CSSI does not know
if such a demonstration can be made for all 14 units within this
time period, given the limited regulatory description of how a
demonstration is to made, no standards for EPA's decision on whether
a demonstration is adequate, and no guidance on how to make this
demonstration. CSSI has had no opportunity to comment on this 120
day requirement, which was not in the draft permit.
Finally, CSSI contends that the provision allowing EPA to require a
post-closure permit, including corrective action, if EPA determines
that the equivalency demonstration fails to document clean closure.
is clearly erroneous under the law, because it violates CSSI's due
process rights and fails to provide CSSI with the procedural rights
in 40 CFR 270.1(c)(6) governing the equivalency demonstration for
clean closure.
Level of Detail. CSSI takes issues with the level of detail in the
permit, specifically those conditions which specify test methods and
accuracy of waste recordkeeping:
2 of 3
-------
88-6
Permit conditions V.A.(4)(a) and VI.B.(3)(c) require CSSI perform
in-place hydraulic conductivity testing, as specified using the
Double-Ring Infiltrometer (DRI) testing method in the EPA's
"Construction Quality Assurance Guidance," on any soil liner used
for a surface impoundment or landfill, respectively. In the
preamble to its proposed rules on leak detection from landfills, EPA
solicited comments on whether in-field testing should be mandatory
for permeability testing of the lower soil liner. EPA itself has
not yet decided whether an in-field hydraulic conductivity test will
be adopted as a regulatory requirement. In addition, CSSI argues
that EPA has no legal authority to require liner testing for the
clay portion of that soil liner, since there is no minimum
technology requirement for the clay portion of the primary composite
liner.
Section VI.A.(6) requires that CSSI maintain a permanent, accurate
record of the three-dimensional location of each waste buried at the
site in existing landfills, irrespective of the date of disposal.
CSSI argues that EPA lacks the legal authority to impose absolute
obligation on CSSI to ensure that waste location records prepared by
the previous owner provide an accurate three dimensional location of
each waste disposed within the landfill irrespective of the date of
disposal.
Harmless Condition. Section I.B requires CSSI to hold the Federal
government, the State of Oregon, and all or their personnel "harmless"
for any claim filed against them based on activities at the facility.
except those claims arising from their own negligence. CSSI argues that
EPA lacks statutory or regulatory authority to impose this condition.
which is without precedent in the regulations and in other RCRA Part B
permit issued by EPA.
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Eli Lilly and Company, Tippecanoe Laboratories
Shadeland, Indiana
IND 006 050 967
RCRA Appeal No. 88-7
Petitioner: Eli Lilly
Petition Filed: May 4, 1988
Status of Petition: Region response postponed pending settlement negotiations
Issues: Level of detail
Miscellaneous other issues (storage for recovery of Part 268-
restricted wastes, waiver from storage prohibition, storage of
PCBs)
Sumary of_ Petition:
Eli-Lilly is appealing five conditions of the facility's final Federal
permit. All but one of these conditions address 40 CFR Part 268 land disposal
restrictions requirements; the fifth condition addresses ground-water pumping.
• Ground-Water Pumping. The petitioner believes that Condition II.A.2.
which requires the facility to pump contaminated ground water from "seven
recovery wells" in the main plant area, is too detailed and inflexible.
Eli Lilly suggests that the appropriate language for this permit
condition would require the facility to pump contaminated ground water
from "the recovery well system" installed in the main plant area. The
petitioner argues that the recovery well system includes different
numbers of wells at different times depending upon the recommendations of
its technical consultants and upon maintenance needs. Therefore, the
number of wells in the recovery well system at any time may be more or
less than seven.
• 40 CFR Part 268 Land Disposal Restrictions Requirements. Eli Lilly
petitioned for a review of four permit conditions related to Part 268
land disposal restrictions requirements:
Condition III.C.I now limits the facility to storing Part 268-
restricted wastes "as necessary to facilitate proper treatment and
disposal." The petitioner states that its facility also recovers,
and stores for recovery in tanks and containers, Part 268-restricted
wastes. Because such storage for recovery is permitted under
§268.50(a)(2), Eli Lilly requests that Condition III.C.I be modified
to allow accumulation "as necessary to facilitate proper recovery,
treatment, and disposal."
1 of 2
-------
88-7
Condition III.C.I also does not allow storage beyond'one year for
Part 268-restricted wastes. Eli Lilly requests that its facility be
allowed, per §268.50(c), to store such wastes for more than a year,
as necessary to accumulate such quantities of hazardous waste as are
necessary to facilitate proper recovery, treatment, or disposal.
The petitioner requests modification of Condition III.C.3 (waiver
from storage prohibition) to preserve its right to store hazardous
wastes that meet the treatment standards specified under anv
variance granted under §268.44. Section 268.50(e) states that the
storage prohibition in question does not apply to hazardous wastes
that meet the treatment standards specified in the §268.44 variance.
Condition III.C.4 does not allow Eli Lilly to store liquid hazardous
waste containing PCBs at concentrations greater than or equal to 50
ppm. The petitioner requests that this condition be modified to be
consistent with the requirements of 40 CFR 268.50(f), allowing
hazardous waste containing PCBs in these concentrations to be stored
at a facility that meets the requirements of 40 CFR 761.65(b).
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Waste Tech Services and BP Chemicals America, Inc.
Lima, Ohio
OHD 042 157 644
RCRA Appeal No. 88-8
Petitioners: Clementina DePalma, Kenneth Watt, Noreen Christoff, and
James Carpenter
Petition Filed: May 5, 1988
Status of Petition: Awaiting Regional response
Issues: Procedural issues
Miscellaneous other issues (level and effectiveness of monitoring;
health effects/hazards associated with current facility operations
and demonstration; hazardous waste storage, transport, and volume;
insurance; conflict of interest)
Sugary of Petition:
Effective March 31, 1988, Waste Tech Services was granted a research,
development, and demonstration (RD&D) permit for a one-time demonstration of
"fluidized bed combustion" at its Lima, Ohio, facility. Four citizens from
Lima jointly filed an undated petition requesting the Administrator to review
Region V's permit determination in this case. The petitioners presented their
comments in two sections: those concerning procedural errors and denial of due
process inherent in the existing permitting process; and those questioning
substantive issues in the permit itself. The petition (submitted with
attached responses by the petitioners to EPA's comments on the draft permit)
did not reference specific permit conditions under appeal, nor did it indicate
whether the conditions under appeal were part of the Regional or State permit.
• Procedural Issues and Denial of Due Process. The petitioners object to
the way in which EPA and Ohio conducted the permit proceedings for this
facility, and suggest that the entire permit process of notice, hearing,
review, decisiomnaking, and appeal operates to deny citizens due process
and equal protection of law.
Specifically, the petitioners argue that EPA and State public
notices on the fact of a public hearing and on the issuance of the
draft permit (1) were "vague, ambiguous, and confusing" in content:
(2) failed-to inform the public adequately about the substance of
the draft permit and the public hearing in question, or about
opportunities for public comment: and (3) provided conflicting
information on the duration of the public comment period.
In addition, the petitioners state that the Ohio public hearing was
"prejudicial." because the public was not allowed to ask questions
of either BP Chemicals officials or the Ohio EPA officials in
1 of 2
-------
88-8
attendance, and public comments were limited to five minutes. For
these reasons, the petitioners suggest that the public hearings for
this facility were "sham proceedings."
Substantive Issues on Current and Proposed Operations at the Facility.
The petitioners raised a number of substantive issues on general permit
conditions. The majority of these comments relate to the lack of
information and follow-up investigation of health hazards and health
effects from the proposed RD&D unit, and the lack of adequate, effective,
scientifically valid monitoring of environmental media at the facility.
The petitioners believe that EPA and Ohio do not adequately (and can
not effectively) monitor air, water, and soil contamination based on
existing operations (deep-well injection) at the facility, and note
that scientific studies are not planned to assess existing and
current human health effects or health hazards resulting from
proposed incinerator operations at the facility. In addition, the
petitioners question whether EPA's technical judgment in issues
relating to the permit can withstand scientific scrutiny.
Neither the permittee, EPA, the State of Ohio, or the Allen County
Health Department plan to test or monitor the short- and long-term
health effects associated with the proposed one-time demonstration
at the facility.
There is no adequate warning system to alert the public of major
accidents during the transport of hazardous waste to and from the
facility. The petitioners also raise questions about the routes
that will be used in transporting these wastes, and the times at
which these wastes will be transported.
The petitioners are concerned over drum and container storage of
hazardous materials at the facility before and after incineration.
In .addition, the petitioners are concerned about the amount of waste
that the facility will need to handle to run the incinerator in a
cost-effective manner.
--' The petitioners believe that insurance coverage is inadequate.
The petitioners question how BP Chemicals America, as a
multinational corporation, will be held accountable to the public,
the State, and EPA.
The petitioners also raise possible conflict-of- interest issues.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: Pearl Harbor Public Works Center (PWC)
Makalapa, Hawaii
HI1 170 024 334
RCRA Appeal No. 88-9
Petitioner: State of Hawaii
Petition Filed: May 19, 1988
Status of Petition: Petition withdrawn. Hawaii's request for withdrawal of
its petition was granted by the Chief Judicial Officer
on June 8, 1988.
Issues: Facility location
Additional safety considerations
Sumary of Petition:
The Pearl Harbor PWC hazardous waste storage facility is within a Navy
Industrial Activity area, on property adjacent to an elementary school. The
State's concerns largely stem from the location of the facility with respect
to the direction of the normal trade winds (the school is downwind of the
facility, when prevailing trade winds are present). The petitioner believes
that the location of the facility is especially important should a sudden or
non-sudden release occur, either at the facility or during transportation of
wastes to and from the facility. With this in mind, the State raises two
concerns: the location of the facility, .and the need for additional safety
measures in the permit.
• Location of the Facility. The petitioner requests that the permittee
evaluate alternative sites for locating the storage facility within the
Pearl Harbor Naval Shipyard, and prepare a. document such as an
Environmental Impact Statement or Environmental Assessment for each
location.
• Additional Safety Measures. The petitioner requests that additional
safety considerations be included in the final permit. These measures
would:
Limit hours of operation to hours when school children are not on
their way to and from school;
Require the permittee to enclose totally the facility (i.e., to
enclose not only the storage building, but also the loading docks)
to limit fugitive or toxic air emissions; and
Amend the contingency plan to incorporate evacuation plans and
practices. in the event of a catastrophic release.
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Amerada Hess (Port Reading) Corporation
Port Reading, New Jersey
NJD 045 445 483
RCRA Appeal No. 88-10
Petitioner: Amerada Hess Corporation^-
Petition Filed: May 20, 1988
Status of Petition: Appeal awaiting disposition by the Administrator
Issues: RFI conditions are not justified
Definition of solid waste management unit
Other corrective action issues (financial assurance)
Miscellaneous other issues (legal name of permittee)
Sunmaxy of Petition:
Amerada Hess petitioned the Administrator to review conditions of the
facility's_final HSWA permit relating to a 500-gallon underground storage tank
(Module II, Sections B.3, D, and H). The petitioner outlined two groups of
issues to be reviewed: general issues concerning the scope of corrective
action required by the permit, and specific issues concerning corrective
action provisions of the permit. In addition, the petitioner noted that the
legal name of the permittee was incorrectly identified in the permit, and
requested that the permit be revised accordingly.
• General Corrective Action Issues. In Module II, Section B.3 of the
permit, EPA identifies as a solid waste management unit (SWMU) "the area
around the excavated 500-gallon underground storage tank." Amerada Hess
argued that the underground storage tank in question was never used for
managing solid waste. Consequently, the area around the excavated tank
should not be identified as a SWMU. The petitioner's arguments are as
follows:
The tank, which was removed in April 1986, was used only for
temporary storage of petroleum products and feedstock - -
specifically, it was associated with the refinery's removal of water
from its product storage tanks. Product and feedstock were
subsequently recovered from the tanks.
Based on the redefinition of solid waste and the recent decision in
American Mining Congress v. Environmental Protection Agency. 824
F.2nd 1177 (D.C. Cir. 1987), Amerada Hess argued that petroleum
products temporarily stored in the tank cannot be characterized as
1 Amerada Hess Corporation is the corporate parent of Amerada Hess (Port
Reading) Corporation.
1 of 2
-------
88-10
solid waste, since at no time had petroleum product been
"discarded".
EPA has no basis for asserting that hazardous wastes were ever
stored in or released from the tank.
Specific Corrective Action Provisions. Module II, Section D requires
Amerada Hess to prepare soil sampling and analysis plans for this area.
Module II, Section H requires Amerada Hess to demonstrate financial
assurance for the implementation and completion of corrective action
measures required by the permit. Amerada Hess argued that since the 500-
gallon tank was not a SWMU. it does not trigger the application of either
the corrective action requirements under RCRA §3004(u) or the associated
financial assurance requirements. The petitioner's arguments are as
follows:
EPA policy, as reflected in the National RCRA Corrective Action
Strategy and "Guidance on Corrective Action for Continuing
Releases", affirms that releases from product storage facilities are
beyond the scope of RCRA §3004(u).
EPA policy also affirms that corrective action should only be
applied in circumstances where it is necessary to protect human
health and the environment. Since the tank was removed in a manner
protective of human health and the environment (as outlined in the
petition), corrective action is unnecessary.
Legal Name of the Permittee. The petitioner noted that Amerada Hess
(Port Reading) Corporation, a wholly-owned subsidiary of Amerada Hess
Corporation, is the actual owner and operator of the Port Reading
refinery and is the party to whom New Jersey issued the RCRA Part B
permit. However, the party named in the permit issuedjby Region II is
Amerada Hess Corporation, not Amerada Hess (Port Reading) Corporation.
The petitioner requested that the permit issued by Region II be revised
to state correctly the name .of the permittee (i.e., Amerada Hess (Port
Reading) Corporation).
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: American Cyanamid Company
Westwego, Louisiana
LAD 008 175 390
RCRA Appeal No. 88-11
Petitioner: American Cyanamid Company
Petition Filed: June 23, 1988
Status of Petition: Awaiting Regional response
Issues: RFI conditions are not justified
Definition of solid waste management unit
Procedural issues
Level of detail
Joint permitting
Miscellaneous other issues (submittal of plans, ground-water
protection requirements, closure of surface impoundments, tank
treatment)
Sumary of Petition:
The petitioner requests a review of the final permit issued jointly to
its chemical manufacturing plant in Westwego, Louisiana, by Region VI and the
Louisiana Department of Environmental Quality (LDEQ). The petitioner's
comments on the Regional portion of the permit address HSWA corrective action
and land disposal restrictions. The majority of the petitioner's comments,
however, deal with the State portion of the permit.
• HSWA Corrective Action Conditions. The petition requests that sections
VIII.C, D, E, G, H, and all included task outlines be deleted from the
permit. These sections address corrective action for continuing
releases.
The petitioner states that the RCRA Facility Assessment (RFA)
findings do not support the need for further investigations. Both
the RFA and a site inspection conducted by the State indicated no
evidence of a release. In addition, ground-water sampling data
showed no detectable constituent concentrations.
The petitioner states that permit conditions addressing corrective
action for continuing releases are "much too detailed," appear to be
extracted from guidance documents, and overstep the intent of
§3004(u). The petitioner states that the findings of the RFA negate
the requirements of this section of the permit.
American Cyanamid objects to inclusion of any definition of solid
waste management unit (SWMU) in the permit. Moreover, the
petitioner argues that the inclusion of "areas contaminated by
1 of 5
-------
88-11
routine, systematic, and deliberate discharges from process areas"
in the permit's definition of SWMU contradicts a decision by the
U.S. Court of Appeals, ruling that areas subject to corrective
action pursuant to HSWA regulations must be those intended for
storage, treatment, or disposal of hazardous or non-hazardous waste
at a facility seeking a RCRA permit (United Technology v. EPA. No.
85-1654).
The petitioner comments that well MW-27 is not a SWMU.
Procedural Issues. The petitioner states that a provision relating to a
"land disposal reopener" under HSWA was added since the draft permit and
argues that this permit condition actually defines a regulatory
requirement applicable to EPA and not the permittee. Consequently, the
petitioner requests that this condition be deleted from the facility's
permit.
State Permit. The majority of the petitioner's comments address
conditions in the State portion of the permit, including general permit
conditions (section II), general facility conditions (section III),
permitted facilities (section IV), permit conditions applicable to all
tanks (section V), storage in impoundments (section VI), and ground-
water protection (section VII).
Since the Louisiana Hazardous Waste Regulations (LHWR) have recently
been renumbered and recodified, American Cvan*""id requests that its
permit be revised to identify both the ol/t T.HWR numbering system and
new numbering system, to replace old regulatory references with the
new numbering system, or to provide a cross reference between the
two numbering systems. Any resulting revisions to titles and page
numbers should be reflected in a revised permit table of contents.
American Cyanamid believes that certain general permit conditions
(i.e., II.B-E) contain excessive "standard regulatory verbiage" or
statements that are not required conditions of compliance for the
permittee (e.g., II.E.24, general permit conditions, duties and
requirements, confidentiality).
The petitioner states that the language in II.E.9 (general permit
conditions, duties and requirements, monitoring and records) is too
narrow. in that it does not reference (1) sampling procedures
equivalent to methods in SW-846; (2) laboratory methods for analyses
in the ground-water sampling and analysis plan; and (3) accepted
sampling methods for parameters specified in documents other than
SW-846.
The permit requires that revisions to the permit be submitted with
the annual facility report. American Cyanamid argues that such
submittals are unnecessary and duplicative in cases where State
regulations require that revisions be submitted prior to the change
2 of 5
-------
88-11
itself (e.g., as is the case with changes to closure plans). In
addition, American Cyanamid suggests that regular submission of
paperwork which is required to be maintained in the operating record
is unnecessary and excessive.
The petitioner requires that III.A.2 (general facility conditions,
design and operation of all facilities) be changed to allow
emergency permitting, as provided in the LHWR.
The petitioner claims that certain State permit conditions exceed
regulatory requirements. have no basis for protection of human
health and the environment or to ensure compliance with regulations.
are inconsistent with existing State requirements, or violate the
statutory procedures of State law:
requirement to perform an annual review and submit an annual
report on the waste analysis plan:
- _ requirement to submit an annual report reviewing and evaluating
the laboratory Quality assurance/quality control program:
requirement to perform an annual recharacterization of
hazardous waste:
requirement to complete an annual review of the status of
arrangements with local authorities:
requirements concerning inspection of existing tank systems:
requirements pertaining to operation of surface impoundments
(e.g., requirements to inspect and record levels every eight
hours, to install gauges within impoundments, to certify
annually dike integrity, etc.);
references in the permit to the Louisiana Water Control Act and
to the Louisiana Environmental Quality Act:
turbidity requirement to generate water with a specific clarity
in the ground-water monitoring system;
requirement to submit well depth measurements with the Ground-
water Annual Report; and
requirement to identify and evaluate all compounds appearing on
the analytical gas chromatograph (which would, presumably,
include the identification and evaluation of compounds that are
not identified as hazardous constituents).
The petitioner contends that certain sections of the final State
permit (e.g., general facility conditions, cost estimate for
3 of 5
-------
88-11
facility closure) were not edited to reflect LDEQ's responsiveness
summary. In addition, the permittee found several typographical
errors in the permit, as well as errors in design codes and
calculations with respect to design codes for certain units.
With regard to financial assurance and liability requirements. the
petitioner proposes changes clarifying that: (1) financial assurance
has been provided by the permittee, and (2) the facility has
demonstrated financial assurance for liability through the financial
test.
Submittal of Plans. The petitioner does not believe that various plans
(e.g., waste analysis plan, ground-water sampling and analysis plan,
field report forms, etc.) submitted with the permit application are
required to be attached as part of the permit.
American Cyanamid argues that although Louisiana regulations require
that the plans be submitted with the application and that they be
-maintained onsite, the regulations do not require that such plans be
a part of the permit.
Consequently, the petitioner requests that the permit application be
appended, with these plans as attachments and with the permit
specifying that the attachments are for reference only.
In addition, the petitioner notes that references in the permit to
the attachments and that permit conditions reflecting the wording of
the attachments are often incorrect or inconsistent (e.g.,
VII.C.3.h, ground-water protection, ground-water protection
standard).
Ground-Water Protection. With regard to ground-water protection in the
State portion of the permit:
American Cyanamid states that it has maintained one of the wells
included in the ground-water monitoring system as a piezometer for
hazardous waste ground-water monitoring. American Cyanamid requests
a compliance schedule to remove sediments and obtain and install a
bladder pump for this well. In addition, the petitioner requests
that water elevation not be measured at this well.
The petitioner comments that pH is not a representative indicator of
hazardous waste contamination in the ground water at this site, or
of mechanical performance of wells in the monitoring system.
The petitioner requests that background levels and the ground-water
protection standards developed using the "method detection limit" be
doubled to establish acceptable concentration limits at the
facility.
4 of 5
-------
88-11
The petitioner requests that the 10 percent screen interval blockage
by sediments by revised to read 50 percent, which the petitioner
claims is a more feasible value for requiring well maintenance to
take place.
American Cyanamid has requested abandonment of several non-
hazardous wells which may eliminate them soon from the ground-water
monitoring system. The petitioner suggests that the permit clarify
that these wells are not monitoring wells.
American Cyanamid has requested wording changes referring to the
student's t-test.
American Cyanamid. has requested clarification of items to be
included in the Ground-water Annual Report.
The petitioner argues that the condition to correct ground-water
contamination from any source should not be a condition of a
hazardous waste permit unless relative to solid waste management
areas. Consequently, American Cyanamid argues that it should not be
required to investigate and correct all confirmed ground-water
r,r>nframination. regardless of the source of the contamination, as
part of its detection monitoring program.
Closure of Surface Impoundments. The petitioner suggests that the State
permit may need to address closure of surface impoundments necessitated
by the land disposal restrictions. The petitioner states that it is
committed to expend $8.25 million to close and replace these units in
1988, and that LDEQ was notified of such closure in May 1987.
Tank Treatment. The petitioner believes that a table summarizing
treatment tank systems at the facility can be further consolidated for
easier viewing (see IV.A.I -- permitted facilities, tanks, existing
tanks). With respect to tanks, the petitioner states that:
The State permit should not classify in-line cartridge filter units
as tanks. since such filter systems do not hold accumulations of
hazardous waste and are typically thought of as "other" or
"miscellaneous" units by LDEQ and EPA; and
Specifics other than minimum allowable design code compliance (e.g.,
structural integrity, metal thicknesses necessary to maintain
struetural integrity) are unnecessary in the State permit.
5 of 5
-------
PERMIT APPEAL FACT SHEET
Facility: L-TEC Company, d/b/a L-TEC Welding and Cutting Systems
Florence, South Carolina
SCD 005 574 967
RCRA Appeal No. 88-12
Petitioner: L-TEC
Petition Filed: July 19, 1988
Status of Petition: Awaiting Regional response.
Issues: RFI conditions are not justified
Definition of solid waste management unit
Summary of Petition:
L-TEC objects to the incorporation of corrective action requirements in
this facility's post-closure permit, which lists and provides for regulation
of eight solid waste management units (SWMUs) located on the facility
property.
• Corrective Action Issues. L-TEC argues that the requirement to prepare a
detailed RCRA Facility Investigation (RFI) plan addressing all SWMUs is
not justified and requests that the areas identified as SWMUs be removed
from the list of regulated units in the permit.
L-TEC states that a Preliminary Assessment/Site Investigation
(PA/SI) prepared by EPA in 1986 concluded that no further action was
required at six SWMUs (SWMU Nos. 1, 2, 4, 5, 7, and 8). Because EPA
previously determined that no further action was required for these
areas, L-TEC argues that these units should be deleted from the list
of units covered in the permit. L-TEC states that it has completed
necessary cleanup activities at one of the SWMUs at which further
action was required (SWMU No. 9, a varnish strip tank with an
underlying concrete slab).
L-TEC argues that a number of these units are not units from which
hazardous constituents might migrate and pose no environmental
hazard. Consequently, L-TEC believes that further regulation of
these units is not necessary to protect human health and the
environment. For example,
The units listed as SWMU Nos. 1, 2, 3, 7, and 9 are within the
zone of hydraulic control of L-TEC's planned ground-water
extraction system.
SWMU No. 1, a wastewater treatment plant with an aboveground
treatment tank, has been visually inspected, and no leaks have
been found. SWMU No. 2, another wastewater treatment plant,
1 of 2
-------
88-12
was closed in 1976, and all equipment was removed at that time.
There is no evidence or record of spills at the remaining
concrete pad.
L-TEC contends that the drum storage area listed as SWMU No. 8
has been completely cleaned up, including removal of
contaminated soils. Since only new, empty drums are stored in
that area now, L-TEC reasons that further investigation of SWMU
No. 8 is unwarranted.
SWMU No. 4. a sump and lift station, is not identified in the
permit. L-TEC reserves the right to contest the inclusion of this
area as a SWMU after its location has been identified in the permit.
Definition of Solid Waste Management Unit. L-TEC states that SWMU number
5 contains sanitary wastewater, and therefore is excluded under §261.4(a)
from the definition of solid waste.
2 of 2
-------
PERMIT APPEAL FACT SHEET
Facility: USX Corporation
Gary, Indiana
IND 005 444 002
RCRA Appeal No. 88-13
Petitioner: USX Corporation
Petition Filed: July 28, 1988
Status of Petition: Awaiting Regional response.
Issues: Permit denial
Joint permitting
Summary of Petition:
The petitioner requests review of EPA's decision to deny a hazardous
waste permit for USX's Gary Works.
• remit: Denial. The letter announcing the permit denial states that the
basis for EPA's decision was "previously outlined in the Fact Sheet,"
and, in general, was based on USX's "failure to correct deficiencies in
the State portion of the permit application and failure to be in
compliance with certain interim status standards." Since this letter
does not further specify the grounds for the review. USX comments that it
is unable to be specific in its request for review. Instead, USX
incorporates by reference in its petition the following documents:
its comments on the Fact Sheet, to the extent that the denial is
based on matters raised in the Fact Sheet; and
the Request for Adjudicatory Hearing which USX filed with the
Indiana Department of Environmental Management, to the extent that
the denial is based upon matters cited by the State as deficiencies
in the application or in the Notice of Violation.
• Joint Permitting. USX also requests review on the issue of whether EPA
has jurisdiction to act to deny the State permit.
1 of 1
-------
PERMIT APPEAL FACT SHEET
Facility: Environmental Waste Control, Inc. (EWC), d/b/a Four County Landfill
Fulton County, Indiana
IND 000 780 544
RCRA Appeal No. 88-14
Petitioner: EWC
Petition Filed: July 29, 1988
Status of Petition: Awaiting Regional response.
Issues: Procedural issues
Miscellaneous other issues (bases for permit denial)
Summary of Petition:
The Indiana Department of Environmental Management (IDEM) and the U.S.
EPA, Region V; (EPA) jointly issued a Notice of Intent to Deny a RCRA
Operating Permit for the Four County Landfill. The petitioner contends that
the Notice of Intent to Deny, in accordance with §124.2(a), is considered the
draft permit. EWC is petitioning for administrative review of the Regional
Administrator's decision to deny the issuance of the permit.
• Procedural Issues. EWC believes that its due process rights have been
denied by the lack of a description, in the denial letter, of the bases
for EPA's decision to deny EWC's permit. Although the denial letter
refers to a Response to Comments, the letter fails to make specific
references to those particular responses which constitute the basis for
EPA's denial.
Although the IDEM Commissioner stated several broad reasons for
IDEM's denial of the permit, she did not indicate whether EPA's
reasons for denial were the same or similar. The Commissioner
stated only that EPA "also denied" EWC's permit.
The petitioner claims that it is impossible to determine which of
the numerous responses to comments are the actual bases for EPA's
decision or how much weight was given to each response.
EWC states that the Response to Comments attached to the denial
letter fails to comply with the requirements of 40 CFR 8124.17(a)(1)
which requires that, at the time a permit decision is issued, the
Regional Administrator shall issue a response to comments which
"shall specify which provisions, if any, of the draft permit have
been changed in the permit decision, and the reasons for the
change."
1 of 3
-------
88-14
The petitioner argues that EPA's denial of EWC's requested extension
of the comment period denied EWC its minimum due process rights by
denying EWC the opportunity to respond to comments made by others
during the public comment period. EWC believes that it sufficiently
demonstrated the need for such extension in a letter which
accompanied its comments on the draft permit decision.
The petitioner objects to a statement in the denial letter which, if
used as a basis for EPA's decision to deny the permit, infringes
upon EWC's due process rights by prematurely concluding that EWC is
guilty of alleged interim status violations prior to their being
fully litigated.
Other Permit Denial Issues. EWC objects to the denial of its permit to
the extent that such denial was based on the inadequacy or incompleteness
of information submitted by EWC concerning the Four County Landfill.
The petitioner argues that, for each of the subjects that the Agency
considers deficient in terms of the information provided, it raised
all reasonably ascertainable issues and submitted all reasonably
available arguments supporting its position during the public
comment period. These subjects are as follows:
ground-water monitoring system/program;
compatibility testing;
layout design;
collection systems;
water balance;
tranmissivity testing;
permeability and liner contacts;
landfill design;
stability of landfill slopes;
material testing data or equivalent capacity information;
system strength or prevention of clogging;
synthetic liners, run-on control system, or drainage and
erosion;
construction quality assurance program;
2 of 3
-------
88-14
interim status monitoring;
aquifer identification;
contaminant plume description, detection monitoring program and
information relating to indicator parameters, and waste
constituents and reaction products to be monitored.
The petitioner acknowledges EFA's opinion that the site is located
in an area poorly suited geologically for hazardous waste disposal.
However, EWC objects to the denial of its permit on the basis of
failure to provide complete or adequate information or on the basis
of failure to comply with interim status standards (as outlined
above), if. in fact, the major reason for permit denial is the
allegedly poor site geology.
The petitioner objects to the permit denial to the extent that such
denial was based on its failure to provide information which could
not reasonably be provided to the extent requested.
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Ross Incineration Services, Inc.
Grafton, Ohio
OHD 048 415 665
RCRA Appeal No. 88-15
Petitioner: Ross Incineration Services
Petition Filed: July 29, 1988
Status of Petition: Awaiting Regional response.
Issues: Procedural issues
Miscellaneous other issues (storage or treatment at new or modified
units; incinerator test performance requirements; emissions plans;
typographical error)
Status of Petition:
~ Ross~i~s~ petitioning the Administrator to review certain conditions
contained~in the final RCRA permit issued to its Grafton, Ohio, facility on
July 1, 1988. The conditions that are being contested relate to facility
operations.
• Certification of Construction or Modification at the Facility. The
permittee objects to the provision in Section I.D.ll. which prohibits the
commencement of storage or treatment of hazardous waste at modified or
newly constructed storage or treatment areas placed into service after
the effective date of this permit unless certain conditions are met.
Ross contends that the provision improperly applies to the
construction of the Closed Loop Scrubber system and container
storage area, which is being constructed in compliance and in
accordance with the requirements of the permit. Instead the
provision, according to the petitioner, should only apply to
construction of units anticipated to be in noncompliance with the
permit.
The petitioner claims that the provision violates due process.
because it fails to specify what will happen if the Regional
Administrator does not render a compliance determination within 90
days (60 days, in the case of the Closed Loop Scrubber system) of
the receipt of the letter and certification.
Ross requests that the section be modified to state that the
Regional Administrator's failure to render a compliance
determination within the requisite time period constitutes a waiver
on the part of EPA. Ross points out that Federal statutes prohibit
the use of the surface impoundment after November 8, 1988. Assuming
that the compliance demonstration will take the full 60 days, Ross
1 of 3
-------
88-15
must complete construction of the Closed Loop Scrubber system by
earlier September and the compliance demonstration must be completed
on schedule or Ross will have to close its facility, unless the
section is modified.
Incinerator Performance Test Requirements. Ross suggests that the
condition at Section V.C.9. which requires an incinerator performance
test every three years. is unwarranted and vague.
The petitioner contends that the condition violates Ross' due
process. because it is unclear what is required for the incinerator
performance test.
Ross claims that test is superfluous since the permit contains
provisions to ensure that the incinerator is meeting performance
standards.
The petitioner, with reference to §270.62, suggests that EPA
regulations neither require nor allow an incinerator performance
test (or trial burn) to be conducted every three years.
Ross states that the inclusion of this condition constitutes an
illegal attempt to institute rule-making without going through the
required formal rulemaking process, violating Ross' procedural
rights.
Toxic Metals and Hydrogen Chloride Emission. The petitioner objects to
the condition in the permit which requires that Ross submit a written
implementation plan, within six months from the issuance of the permit,
for control of toxic metals and hydrogen chloride emission from the
incinerator. Ross objects to this condition on the grounds that the
condition is infeasible, inequitable, and illegal.
The petitioner contends that EPA nor the regulated community has
reached a consensus on the need for or the appropriate methods of
quantifying metal concentrations and their impact on human health
and the environment. To this extent, Ross claims that the
requirement is so open that compliance is impossible.
The petitioner argues that the condition violates due process.
because it is being implemented through guidance to which the
regulated community is not privy and it is being arbitrarily applied
to only some facilities.
Ross submits that the inclusion of this condition in the permit
constitutes illegal rule-making, because EPA did not follow formal
provisions in adopting this requirement. Instead, the requirement
is being implemented through guidance.
Typographical Error. The petitioner requests that the Administrator
2 of 3
-------
88-15
review condition VII.B. Ross contends that there is an omission from
this provision. As a result, it is impossible to comply with the
condition.
3 of 3
-------
PERMIT APPEAL FACT SHEET
Facility: Chemical Waste Management, Inc. (CWM)
Emelle, Alabama
ALD 000 622 464
RCRA Appeal No. 88-16
Petitioner: CWM
Petition Filed: July 29, 1988
Status of Petition: Awaiting Regional response.
Issues: Procedural issues
Miscellaneous other issues (omnibus provision; carbon monoxide
limitations; feed rate of metals)
Summary of Petition:
CWM objects to new permit conditions for the incinerator it proposes to
construct and operate at its Emelle facility. The petitioner outlines both
legal objections and technical objections to the imposition of new permit
conditions.
• Omnibus Provision. The petitioner argues that EPA's decision to impose
conditions for control of products of incomplete combustion and metals
emission by relying on its authority under the omnibus provision has no
legal justification.
The petitioner argues that the Agency used "forthcoming guidance and
proposed rules" as a basis for the permit conditions.
EPA can impose regulations under the omnibus provision only if
necessary to protect human health and the environment. That EPA is
considering "forthcoming guidance and proposed rules" on control of
products of incomplete combustion and metals does not demonstrate
the requisite necessity.
• Procedural Issues. The petitioner further argues that to rely on
unpublished, perhaps even unwritten, documents (i.e.. forthcoming
guidance and forthcoming proposed regulations) is contrary to the notions
of fundamental fairness that underlie the due process clause and notice-
and-comment rulemaking procedures.
• Carbon Monoxide Limitations. The petitioner objects to the requirements
of two permit conditions which specify that, if waste feed must be cut
off for an exceedance of ^elataBlished? carbon, monoxide (CO) limits. CWM may
not resume the waste feed to
100 ppm limit, but
the'£ • •'* "*ilV_ ^- \ i_ *_ _. t_ _ _ t_ _ _ _
after the 100 ppm concentration rMmite^or^ CO..in'the .exhaust gas has been
"^ ™'^^™""^™™^™™^^^"^^^^^™"^^^^^!!^^"7>^"^^<^2^^™™jr^^™^^"^t^r^fi?li^^^^^^™^^^^^^™™"^l^^™™^^^™"™^^^^^^^^™^™^™™—
reestablished. ' *•' •"'••**
1 of 2
-------
The petitioner argues that there is no evidence that this
requirement is necessary to protect human health and the environment
since CO excursions above the 100 ppm limit are caused almost
exclusively by "CO spikes" and since, under other conditions in
CWM's permit, these spikes activate an interlock system that
automatically shuts off all waste feed and concurrently switches
operation of the burners to virgin fuel until the rolling average
has returned to 100 ppm. Therefore, the petitioner contends that to
require operation of the incinerator for an additional period
(whether it be ten minutes or even one minute) would not serve any
function.
The petitioner further asserts that the establishment of a ten-
minute lag time (as opposed to some other lensth of time) is
arbitrary.
Feed Rate of Metals. The petitioner objects to the conditions which
limit the total feed rate of metals to the incinerator during the pre-
trial burn period, the post-trial burn period, and the operation of the
incinerator.
The petitioner argues that, aside from the previously raised
objections to the use of omnibus authorities to impose conditions
based not on a rule or a proposed rule but on what EPA anticipates
will be a proposed rule, there are no data to support the
assumptions that underlie these conditions (i.e.. that all metals in
the waste are emitted to the atmosphere).
The petitioner contends that the imposition of these metal feed rate
limitations at Emelle will place the incinerator at a competitive
disadvantage with other commercial incinerators around the country
which have not had metal feed rate limits established in their
permits.
2 of 2
------- |