Waste Technologies Industries East Liverpool, Ohio (Consolidated Appeal Nos.)

Plain-English summary

Waste Technologies Industries operated a commercial hazardous-waste management facility in East Liverpool, Ohio. EPA Region 5 approved a permit modification allowing WTI to add a spray dryer to its pollution-control equipment, but also tried to add the landowner, the Port Authority for Columbiana County, as a co-permittee. The Environmental Appeals Board held that the Region could not make that co-permittee change on its own through the permit-modification rules, so it remanded that part and ordered the proposal withdrawn. The Board denied review of the remaining challenges to the spray-dryer modification because the petitioners did not show the error, legal conflict, or important policy issue required for review under 40 C.F.R. § 124.19. The order did not impose a penalty.

Decision snapshot

• Cited authorities: 42 U.S.C. § 6925(c)(3); 40 C.F.R. §§ 124.19, 270.1(c), 270.10(b), 270.41, 270.42, 264.51(a), and 270.62
• Outcome: Review was denied for the spray-dryer modification, while the attempted addition of the Port Authority as co-permittee was remanded and ordered withdrawn.
• Key point: EPA may require a landowner to hold a permit, but it must use a legally authorized procedure to add the landowner as co-permittee.

Full text (EPA EAB public release)

106 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF WASTE TECHNOLOGIES
INDUSTRIES, EAST LIVERPOOL, OHIO

Consolidated RCRA Appeal Nos. 92-7, et alia

ORDER DENYING REVIEW IN PART AND REMANDING IN
PART

Decided July 24, 1992

Syllabus

This Order consolidates seven petitions for review of a February 3, 1992 decision
by U.S. EPA Region 5. In that decision, the Region granted Waste Technologies Indus-
tries’ (WTI’s) request for a modification to its 1983 Resource, Conservation and Recov-
ery Act permit. The 1983 permit allowed WTI to construct a commercial hazardous
waste management facility in East Liverpool, Ohio. The February 3, 1992 modification
allows WTI to add a spray dryer to its pollution control equipment. In addition to
approving the modification request, the Region, sua sponte, decided to modify the
permit to include the Port Authority for Columbiana County, Ohio, the property owner,
as a co-permittee.

The following parties have filed petitions for review with the Board: the Port
Authority for Columbiana County, Ohio, the Attorney General of the State of West
Virginia, the City of Pittsburgh, PA, Constance W. Stein/SOS, Samuel N. Kusic, the
Sierra Club-Allegheny Group, and Carol S. Hicks.

Held: Absent the consent of the permittee, the Region lacks the authority under
40 C.F.R. §270.42 to modify the permit sua sponte to include the Port Authority
of Columbiana County, Ohio as a co-permittee. The matter is therefore remanded
and the Region is ordered to withdraw its proposal to modify the permit in this
way. With regard to the remaining issues raised by the above-named petitioners,
none satisfies the requirements for review under 40 C.F.R. § 124.19. Accordingly, re-
view is denied.

Before Environmental Appeals Judges Ronald L. McCallum
and Edward E. Reich.

Opinion of the Board by Judge McCallum:
On June 24, 1983, Region 5 issued a permit under the Resource
Conservation and Recovery Act (RCRA), as amended, 42 U.S.C.A.

§§ 6901-6992k, authorizing Waste Technologies Industries (WTI) to
construct a commercial hazardous waste management facility in East

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 107

Liverpool, Ohio. The permit authorizes the storage of hazardous
wastes in tanks and containers, the treatment of hazardous wastes,
and the incineration of hazardous wastes. After an appeal to the
Administrator, the permit became final and effective on January 25,
1985. See In the Matter of Waste Technologies Industries, RCRA Ap-
peal No. 83-5 (Dec. 17, 1984) (Order Denying Petitions for Review).

The facility is designed to incinerate organic wastes in a kiln
and secondary combustion chamber. The flue gas from the secondary
combustion chamber is cleaned through air pollution control equip-
ment before being released to the atmosphere. This equipment in-
cludes a waste heat recovery boiler, an electrostatic precipitator and
a wet scrubbing system.

On October 29, 1990, WTI requested a modification of the 1983
permit that would allow it to add a spray dryer to its pollution
control equipment, between the waste heat recovery boiler and the
electrostatic precipitator. The spray dryer would utilize the liquid
from the wet scrubber to quench the flue gas and reduce its tempera-
ture. The modification would also reduce the amount of liquid waste
generated from the wet scrubbing system and subsequently dis-
charged to the municipal sewer system. The Region classified the
requested change as a Class 3 modification. See 40 C.F.R. § 270.42(c).
On February 3, 1992, after reviewing and responding to public com-
ments, the Region granted the spray dryer modification. In addition,
the Region, sua sponte, decided to modify the permit to include the
Port Authority for Columbiana County, Ohio, the property owner,
as a co-permittee. This change was classified as a Class 1 permit
modification. See 40 C.F.R. §270.42(a). A total of seven appeals have
been filed under 40 C.F.R. § 124.19 from the permit modification.
The following parties have filed appeals: the Port Authority for
Columbiana County, Ohio, (RCRA Appeal No. 92-7); the Attorney
General of the State of West Virginia, (RCRA Appeal No. 92-10);
the City of Pittsburgh, PA (RCRA Appeal No. 92-11); Constance
W. Stein/SOS (RCRA Appeal No. 92-12); Samuel N. Kusic (RCRA
Appeal No. 92-13); the Sierra Club-Allegheny Group (RCRA Appeal
No. 92-15); and Carol S. Hicks (RCRA Appeal No. 92-16). On April
20, 1992, the Region responded to the petition filed by the Port
Authority of Columbiana County, Ohio (hereafter “Region Response
to Port Authority Petition”).1 The Region responded to the remaining

1See Response of United States Environmental Protection Agency to Petitioner
Columbiana County Port Authority's Request for Review of Class 1 Modification to
Waste Technologies Industries’ Hazardous Waste Permit (dated April 20, 1992).

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108 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

petitions on May 5, 1992 (hereafter “Region Response to Petitions”).2
WTI submitted a response to the petitions on April 18, 1992. This
order consolidates these appeals.

Under the rules governing this proceeding, there is no appeal
as of right from the Region’s permit decision. Ordinarily, a RCRA
permit determination will not be reviewed unless it is based on a
clearly erroneous finding of fact or conclusion of law or involves
an important matter of policy or exercise of discretion that warrants
review. See 40 C.F.R. §124.19(a); In the Matter of Chemical Waste
Management Inc., RCRA Appeal No. 87-12, at 2 (May 27, 1988);
In the Matter of Highway 36 Land Development Co., RCRA Appeal
No. 87-5, at 2 (September 2, 1987). The preamble to the regulations
states that “this power of review should only be sparingly exercised”
and that “most permit conditions should be finally determined at
the Regional level * * *.” 45 Fed. Reg. 33,412 (May 19, 1980). The
burden of demonstrating that review is warranted is on the Petition-
ers. None of the Petitioners has shown that review of the spray
dryer modification is warranted under 40 C.F.R. § 124.19, and there-
fore review of that proposal is denied. As to the addition of the
Port Authority's name to the permit, we remand the permit to the
Region for withdrawal of that proposal. Our reasons follow.

PORT AUTHORITY OF COLUMBIANA COUNTY APPEAL

The Region added the Port Authority's name to the permit on
its own initiative because EPA regulations require landowners such
as the Port Authority to sign the permit application and to be listed
as co-permittee along with the facility’s operator.4 In this instance,
the Port Authority is the owner of the land on which WTI’s hazardous
waste incinerator is situated, and WTI is a tenant in possession
under a long term lease from the Port Authority. Although the Port
Authority does not dispute the Region’s reading of the law regarding

2See United States Environmental Protection Agency, Region V, Response to Con-
solidated [sic] Petitions for Review (dated May 5, 1992).

3As a preliminary matter, we reject WTI’s assertion that all of the petitions
(except the one filed by the Port Authority of Columbiana County, Ohio) should be
dismissed because they were untimely and because they were not directed to the
Environmental Appeals Board. First, the record on appeal indicates (and the Region
attests) that all of the petitions were filed within the prescribed time period. Second,
the Region’s notice of the final permit decision stated that any petitions for review
should be filed with the Headquarters Hearing Clerk. Under the circumstances, failure
to file with the Board amounted to harmless error, at most. The Board will treat
each petition as properly filed. See American Farm Lines v. Black Ball Freight Service,
397 U.S. 532, 539 (1970) (Agency may relax procedural rules when justice so requires).

4See 40 C.F.R. §§ 270.1(c) and 270.10(b).

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property owners’ permit responsibilities, it nevertheless objects to
being added to the permit at this late date, since its ownership
of the land and its relationship to WTI were all known to EPA
Region 5 when the permit was issued in 1983, and even as early
as 1981 when WTI first applied for the permit. The Port Authority
adds that it has never applied for a permit and has never joined
in the permit application by signing it; in fact, both the Port Author-
ity and the Region agree that EPA has never requested it to execute
a permit application or participate in any application proceeding.
For these reasons, the Port Authority contends that the Region is
now barred as a matter of law from adding its name to the permit.5

The controversy over the addition of the Port Authority to the
permit is more procedural than substantive. The critical facts are
few in number and not in dispute: stated concisely, the Port Authority
was never added to the permit despite the fact that its ownership
of the land was known to the Region at all relevant times. In addi-
tion, the critical legal requirements are settled as far as the Agency
is concerned: landowners as well as tenant-operators are each re-
quired to have a permit.® It is only the procedures the Region has

5 WTI has expressed no opinion on the issue of adding the Port Authority to
the permit. It expressly states that it takes no position on this issue and will not
oppose review of it. See WTI’s Response at 2 & 18, notes 1 & 6, respectively (dated
April 18, 1992).

6As explained in Ford Motor Company, et al., RCRA Appeal Nos. 90-9 & 90-
9A, at 7-8 (Administrator, October 2, 1991),

The regulations requiring absentee owners to become permittees
faithfully implement Congressional intent. As EPA’s Chief Judicial
Officer pointed out in Arrcom, Inc., RCRA (3008) Appeal No. 86—
6 (May 19, 1986), the express language of RCRA reflects Congres-
sional intent to impose RCRA requirements on both owners and
operators of facilities. Section 3004 of RCRA directs the Adminis-
trator to promulgate regulations “applicable to owners and opera-
tors of facilities for the treatment, storage or disposal of hazardous
waste * * *,” 42 U.S.C. §6924 (emphasis added). Section 3005(a)
of RCRA provides, without qualification, that
the Administrator shall promulgate regulations requiring each
person owning or operating an existing facility or planning
to construct a new facility for the treatment, storage, or dis-
posal of hazardous waste * * * to have a permit issued pursu-
ant to this section.
42 U.S.C. §6925(a). Thus, Congress clearly intended to subject
absentee owners to liability under RCRA.
The Agency has visited the issue of the landowner’s permit relationship to the
facility operator on other occasions and has concluded that the landowner is legally
required under RCRA to have a permit. See, e.g., Hawaiian Western Steel, et al.,

RCRA (3008) Appeal No. 88-2 (Administrator, November 17, 1988) (concluding that
Continued

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110 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

invoked that are cause for concern and require resolution. As ex-
plained below, it is our conclusion that the Region is correct in want-
ing to add the Port Authority to the permit, but the method it has
chosen for accomplishing that goal is procedurally flawed. Our rea-
sons and additional background discussion follow.

By way of explaining the omission of the Port Authority from
the permit, and the timing of the instant proposal to add the Port
Authority, the Region asserts that in cases where the owner and
operator are not the same individuals it was not “Agency practice
in the early 1980’s * * * to distinguish between facility owners and
property owners.” Region Response to Port Authority Petition at 5.
It was only later, after a “reminder” memorandum⁷ was sent from
EPA headquarters, under date of July 30, 1984, that the Region
began adding landowners to permits, and then, only prospectively.®
The operator’s subsequent request to modify the permit to authorize
installation and operation of a spray dryer was seen by the Region
as a convenient opportunity to correct the earlier omission. The next

nonparticipating owner is liable for failure of the facility to have a permit); Arrcom,
Inc. RCRA (3008) Appeal No. 86-6 (CJO, May 19, 1986) (same).

7See Memorandum from Director, Office of Solid Waste, to Regional Division
Directors, Regions I-X (dated July 30, 1984) (entitled “Issuance of RCRA Permits
to Facility Owners and Operators”). In reality, the change in Agency practice brought
about by the headquarters’ memorandum, which was written approximately one year
after the permit in this case was issued, seems less like a change and more like
a reproof, reminding inattentive permit writers not to overlook the requirement to
add landowners to the permits. The text of the July 30, 1984 memorandum reads
as follows:
This Office [i.e., the Office of Solid Waste] continues to learn
of RCRA permits being issued only to facility operators in those
instances where the facility operator and the facility owner are
different people. Section 270.1(c) requires that “owners and opera-
tors of hazardous waste management units must have permits
during the active life (including closure) of the facility * * *.”
In addition, §270.10(b) requires the operator to apply for the per-
mit and the owner to sign the application along with the operator
when the facility operator and owner are different persons (see
§ 270.10(b)).
Please ensure in the future that all RCRA permits are issued
to both the owner and operator of the facility in those cases
where the facility is owned by one person and operated by another.

Ultimately, whether at the time in question there was or was not an Agency practice
in place of the type described by the Region is not determinative of the issue at
hand, for it is clear that the practice, to the extent it existed, did not represent
a correct interpretation of the fundamental legal provisions governing permit issuance.

8 Region Response to Port Authority Petition, at 5.

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 111

formal opportunity to add the Port Authority, according to the Region,
would not arise until the present permit expires in January 1995.

Notwithstanding this background, there has not been any sub-
stantive change in the law throughout the relevant time periods.
In particular, sections 270.1(c) and 270.10(b) of the regulations, 40
C.F.R. §§ 270.1(c) & 270.10(b), which provide the necessary authority
for the Region to add landowners as co-permittees, have been on
the books in their present form since April 1, 1983, see generally
48 Fed. Reg. 14228, et seq. (April 1, 1983):

§ 270.1(c) Owners and operators of hazardous waste
management units must have permits during the ac-
tive life * * * of the unit * * *.

§ 270.10(b) Who applies? When a facility or activity
is owned by one person but is operated by another
person, it is the operator’s duty to obtain a permit,
except that the owner must also sign the permit
application.

As explained in Hawaiian Western Steel, et al., RCRA (3008) Appeal
No. 88-2 (Administrator, November 17, 1988), these regulations were
also in existence prior to April 1, 1983, in a slightly modified but
substantively unchanged form. Therefore, both before and after the
Region issued the permit on June 24, 1983, the applicable regulations
consistently treated landowners as persons who, along with the opera-
tor of a hazardous waste facility, were required to have a permit.
It therefore appears that in 1983 Region 5 and, perhaps, other Re-
gions were mistaken or confused as to the exact nature of their
permit-issuing responsibilities.

Regardless of the situation on June 24, 1983, the critical legal
requirements are no longer the subject of inconsistent application
or interpretation within the Agency: landowners as well as tenant-
operators are each required to have a permit.2 Provision for the
owner’s signature on the operator’s permit application serves as a
convenience, allowing one application—tantamount to a joint applica-
tion—to be filed by the operator, rather than one each by the owner
and the operator. Hawaiian Western Steel, supra at 8 (“Section
270.10(b) serves to streamline the permit process by relieving the

9 See notes 4 & 6, supra.

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112 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

owner of the responsibility for obtaining a separate permit when,
and only when, the owner signs the operator’s permit application.”).

It comes as no surprise that the Region saw WTI’s permit modi-
fication request as an inviting and convenient opportunity to correct
the record. Regrettably, the Agency’s permit modification regulations,
40 C.F.R. §§ 270.41 & 42, do not make any provision for this type
of permit revision—at least not without the express consent of WTI,
as the named permittee.10 The modification regulations are struc-
tured to allow the Agency to initiate permit modifications for cause,
40 C.F.R. §270.41(a) & (b), and if the Agency’s reasons for wanting
to initiate a permit modification do not fit within one of the enumer-
ated categories, as is the case here, the only available mechanism
under the regulations for modifying the permit is a permittee-initi-
ated permit modification, 40 C.F.R. §270.42. In its response to the
petitions for review, the Region recognizes that its reasons for want-
ing to modify the permit do not fit within any of the Agency-initiated
categories. It nevertheless argues that it may avail itself of one of
the permittee-initiated categories, specifically the so-called Class 1
modification category, which encompasses very minor modifications,
ones that permittees may generally implement without prior advance
notice to either the Agency or the public.11 See 40 C.F.R. §270.42(a)
and § 270.42 (Appendix I). We disagree.

First, it is evident from the structure of the regulations, which
places Agency-initiated permit modifications under a separate head-
ing from permittee-initiated modifications, and simultaneously lists
different criteria under each heading, that the Agency intended dis-
tinctions to be drawn between the two categories. There is no sugges-
tion in these regulations that the Agency’s powers to initiate modifica-
tions is inherently equal to or broader in scope than those of permit-
tees. Rather, the powers of each are separately defined. In other
words, in writing these regulations the Agency imposed a level of
restraint on itself by defining the circumstances under which it, in
contrast to permittees, could initiate permit modifications. Second,
there is no indication that the revised regulations created the prob-
lem, as the Region would have us believe.12 Insofar as we are able

10 See note 5, supra.

11]t claims that “[i]Jn revising the regulations the Agency certainly did not intend
to give the permittee more procedural flexibility than it gave itself.” Region Response
to Port Authority Petition, at 6.

12In its response to the Port Authority’s petition, the Region seeks to give the
impression that the failure of the existing regulations to make specific provision for
the Agency to initiate minor permit modifications on its own initiative is the result

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 113

to determine, the Region would find itself confronting the same di-
lemma had the pre-revision regulations been in effect.13 Therefore,
we see little light emanating from the Region’s reading of the revised
permit modification regulations; the regulations are simply not ame-
nable to the task assigned them by the Region.

As its final argument, the Region asserts that its proposal to
add the Port Authority to the permit is authorized by § 3005(c)(3)
of RCRA, 42 U.S.C.A. §6925(c)(3). It submits that this section has
been “construed broadly” to give the Agency “omnibus authority * * *
to change permits to protect human health and the environment,”
quoting the following language from the section:

Nothing in this subsection shall preclude the Admin-
istrator from reviewing and modifying a permit at
any time during its term. * * * Each permit issued
under this section shall contain such terms and con-
ditions as the Administrator * * * determines nec-
essary to protect human health and the environment.

Region Response to Port Authority Petition, at 12-13.

There are several problems with the Region’s reliance on this
language. First, as a matter of clarification and terminology, this
section of the Act contains several components, but only the last
sentence quoted above is known as the Agency’s “omnibus” authority.
While the omnibus provision has been construed broadly, no com-
parable characterization attaches to the first sentence quoted by the
Region. Second, the language quoted by the Region comes after the
lead sentence of §3005(c)(3), which states that permits “shall be [is-
sued] for a fixed term, not to exceed 10 years.” Therefore, with the
lead sentence providing context, it is evident that the purpose of
the permit modification sentence is to make it clear that there is
no statutory bar to modifying a permit, even though § 3005(c)(3) itself
says that permits shall be for a fixed term. That does not mean,
however, that the Agency, through its power to issue regulations,
cannot place limitations upon itself to initiate permit modifications.

of an oversight in revising the regulations in 1988. Region Response to Port Authority
Petition, at 6.

18 Under those regulations the Region would have faced a nearly identical array
of categories in which to find a niche for its proposed permit modification, and as
now, it would have confronted an equally uninviting selection. Compare 40 C.F.R.
§270.41(a) & (b) (1984) with 40 C.F.R. §270.41(a) & (b) (1991). Also, as now, the
Region would first have to obtain the consent of the permittee before proposing this
so-called “minor” permit modification. See 40 C.F.R. § 270.42 (1984).

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114 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

As discussed previously, the Agency has done that in this instance
by promulgating 40 C.F.R. §270.41(a) & (b). Therefore, the Agency
may not invoke §3005(c)(3) to bypass these regulations, for it is
axiomatic that the Agency must follow its own regulations. Service
v. Dulles, 354 U.S. 363, 372 (1957). Third, even though the omnibus
clause may be construed in a way that has broad application, it
must be invoked contemporaneously with the action proposed by the
permit issuer and it must be supported by appropriate findings. As
we recently stated, the permit-issuing Region “may not invoke its
omnibus authority unless the record contains a properly supported
finding that an exercise of that authority is necessary to protect
human health or the environment.” Sandoz Pharmaceuticals Corpora-
tion, RCRA Appeal No. 91-14, at 7 (EAB July 9, 1992). There is
no indication from the record on appeal that the Region has satisfied
these requirements. It appears that invoking §3005(c)(3) as legal
authority for adding the Port Authority to the permit is nothing
more than a post hoc decision by the Region in response to the
Port Authority's appeal.!4 Finally, the Region’s rationale for invoking
§ 3005(c)(3) is specious. Counsel for the Region explains the rationale
by asserting, on appeal, that human health and the environment
will be better protected by adding the Port Authority to the permit
since it “reminds the Port Authority of its responsibility and * * *
[thus] place[s] a further check on the facility operator, WTI.” Region
Response to Port Authority Petition, at 13. The effect on the permit
operator from adding the Port Authority to the permit is, in our
judgment, speculative at best, thus making the Region’s rationale
far too tenuous to support a finding of necessity under the omnibus
provision. Accordingly, it is our conclusion that the Region’s rationale
lacks a sufficiently proximate relationship to protection of health
and the environment to justify the proposed modification. Therefore,
for the foregoing reasons, the Region may not rely on the § 3005(c)(3)
in this instance to modify the permit. Accordingly, we remand the
matter to the Region to withdraw its proposal to modify the permit
by adding the Port Authority's name as co-permittee.

Our conclusion does not mean that the Region is powerless to
reach its objective of adding the Port Authority's name to the permit.
First, it is conceivable that WTI, if asked, may give its consent
to the permit revision, thus enabling the modification to proceed
as a permittee-initiated modification. In that event, to address any

14A letter from the Region to the Port Authority’s counsel, dated January 13,
1992, offers various statutory and regulatory reasons as authority for adding the
Port Authority to the permit but makes no mention of §3005(cX3) or the omnibus
provision. See Letter from Nancy-Ellen Zusman, Assistant Regional Counsel, U.S.
EPA, Region 5, to J. Michael Kapp, dated January 13, 1992.

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lingering concern about the legal effect of adding the name to the
permit, it may also be necessary for the Port Authority to ratify
the modification—for example, by signing the permit application. Sec-
ond, if WTI does not consent to the permit revision, or if the Port
Authority does not ratify the modification, the Region may also bring
an enforcement action against the Port Authority under §3005 of
the Resource Conservation and Recovery Act (RCRA) by issuing a
compliance order directing the Port Authority to sign the permit
application (or file its own application).15 Other options may also
exist but the choice, of course, lies with the Region, and we make
no specific recommendation in that regard.

CITY OF PITTSBURGH APPEAL

A.

The City of Pittsburgh has also filed a petition for review of
the co-permittee issue but approaches it from a somewhat different
perspective than either the Region or the Port Authority. Although
the City agrees with the facts as described above, and with the
law insofar as it requires the addition of landowners to permits,
it claims that the existing permit is invalid and therefore the addition
of the Port Authority to the permit by means of an attempted permit
modification at this time would be impermissible. The City claims
that by omitting the Port Authority from the permit when it was
originally issued the Region has violated the Agency’s own regula-
tions. According to the City’s reasoning, the permit was invalid when
it was issued, and therefore it would be illegal for the Region to
try to breathe life into it by means of a permit modification nearly
nine years later.

The City nevertheless does not make any specific proposals on
how the Agency should respond to this set of circumstances even
if we were to agree with the City’s negative assessment of the per-
mit’s validity, which we do not. Presumably the City wants the Re-
gion to withdraw its proposal to add the Port Authority to the permit.
Our directions to the Region earlier in this decision are fully respon-
sive to this aspect of the City’s petition. Beyond that we enter the
realm of speculation. It is possible, for example, that the City also

15If the Port Authority does not sign the application, Hawaiian Western Steel,
supra at 9, makes it clear that the Port Authority must file its own separate applica-
tion. Also, regardless of whether the Port Authority signs or files an application,
“EPA considers the owner (owners) and operators of a facility jointly and severally
responsible for carrying out the requirements of the regulations.” 45 Fed. Reg. 33,169
(May 19, 1980); accord Arrcom, Inc., supra note 6 (citing the quoted language).

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116 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

wants the Agency to propose the issuance of an entirely new permit
for the facility, with both WTI and the Port Authority named as
co-permittees. It is also possible that the City wants us to revoke
or stay the permit in the meantime, until a new permit can be
put into effect. We decline to explore these possibilities. It is only
with extreme reluctance—absent a showing of imminent danger to
human health or the environment—that we would undo a permit
issued nearly nine years ago for a facility which is presently under
construction, and nearly completed, merely to adjudicate the addition
of a co-permittee’s name to the permit. There has been no showing
of imminent danger in this instance, and it seems doubtful that
there could be. More fundamentally, however, we believe that delving
into the permit’s validity nine years after it was issued is beyond
the scope of the this Board’s jurisdiction, which is confined to review-
ing the Region’s most recent permit determination, not the deter-
mination it made in 1983. See 40 C.F.R. §124.19. Accordingly, we
make no official ruling on the permit’s validity.

That aside, we turn to the matters that are legitimately before
us,

B.

The City contends that the additional permit conditions added
to the permit for controlling potential adverse effects of the proposed
spray dryer will nonetheless be “ineffective in ensuring compliance
with the Clean Air Act and applicable regulations.” The City cites
several reasons in support of this contention, none of which satisfy
the requirements for review under 40 C.F.R. §124.19. The
overarching defect is that not only are the reasons individually
unpersuasive 16 but they also fail to recognize that compliance with

16The City’s arguments are, in large measure, criticisms of the permit that the
City could have raised when the original permit determination was made in 1983.
As noted elsewhere in our decision, objections to that determination are outside the
scope of the instant permit modification determination and are not subject to review
in this proceeding. In other words, such objections are out of time. Therefore, for
these reasons alone, the City’s arguments must be dismissed. We nevertheless briefly
address them below for the sake of completeness and to provide added context for
other subjects addressed in this decision.

First, the City argues that “inaccuracies in the samplings, inspections, and other
procedures prescribed in the company’s Waste Analysis Plan (WAP) will make it
impossible to achieve compliance with the prescribed emission limits * * *.” The City
provides no support for this assertion, however. Rather, it simply states that inaccura-
cies could result from the WAP’s waste sampling measures thereby making it impos-
sible to reduce emissions by adjusting waste feed characteristics. As the Region stated
in its Response to Comments (p. 27), however,

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emissions standards will be achieved through a number of different
mechanisms, not just those identified in the City’s petition. Therefore,
when the City singles out a few select features of the permit for
criticism,!” it fails to see the larger, more complete picture.18 The

Prior to waste approval at the facility, each customer is required

to submit to WTI a waste profile for each waste which specifies

characteristics and properties of that waste. The waste profile

is then screened to ensure that the wastes meet the facility's

operating requirements. The 10 percent sampling guideline will

be used to ensure that the facility customers are in fact shipping

the expected wastes and is consistent with Federal guidelines

for the sampling of waste shipment in drums. In addition, each

waste shipment will be accompanied by a manifest or shipping

form. No waste will be accepted from any customer without first

meeting the preacceptance criteria and the appropriate docu-

mentation.
The Region determined that these sampling procedures will allow the waste feed
to be properly monitored and controlled and will ensure the protection of human
health and the environment. There is nothing unreasonable about this determination,
and nothing in the City’s petition convinces us otherwise.

Second, the City argues that the permit’s monitoring requirements are inadequate
since they call for continuous monitoring of less than all pollutants and only periodic
monitoring of others. Petition at 7-8. This argument does not establish grounds for
reviewing the permit. The permit’s continuous monitoring requirements for carbon
monoxide, oxygen, and hydrocarbons gauge the incinerator’s efficiency, which affects
all pollutants. Any breakdown in the efficiency will be detected, thus helping to ensure
that all pollutant levels will be maintained within acceptable limits.

Finally, the City argues that emissions limits necessary to protect human health
and the environment should have been established prior to approval of the modification
rather than after the trial burn, and that deferring this determination will foreclose
public comment and review. The City implies that establishing emission parameters
following the trial burn will not ensure adequate protection of human health and
the environment. We disagree. The regulations require that operating conditions be
set based on the results of the trial burn and that any permit modification proceed
in accordance with 40 C.F.R. Part 270.42. See 40 C.F.R. §270.62(b)(10); 40 C.F.R.
§ 264.345(a). Appendix I to 40 C.F.R. § 270.42 indicates that minor changes in operating
requirements reflecting the results of the trial burn are considered Class 1 modifica-
tions. See 40 C.F.R. §270.42(a). Thus, by inference, major changes would be considered
Class 2 or 3 modifications and require some form of public participation. Nothing
in the City’s petition or in the record on appeal persuades us that the permit, as
currently drafted, will prevent the Region from establishing emissions parameters
protective of human health and the environment.

17 Id.

18 An examination of the permit reveals numerous examples of permit conditions
not mentioned in the City’s petition which, along with other permit conditions specific
to the spray dryer, serve to control potential adverse effects of the incinerator and
associated equipment such as the spray dryer. In particular, permit condition C.23
(General Operating Requirements for Incineration System), specifies permissible carbon
monoxide levels in the flue gas leaving the electrostatic precipitator; requirements

for monitoring and recording of carbon monoxide on a continuous basis; waste feed
Continued

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118 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

totality of the permit is the real gauge for calibrating effective compli-
ance, and the City has not raised any serious doubts about the
ability of the permit as a whole to control any adverse effects from
adding the spray dryer. Accordingly, we do not believe that the City,
with its narrowly drawn criticisms of selected individual features,
has met its burden of demonstrating that the permit should be re-
viewed.

STATE OF WEST VIRGINIA APPEAL

Attorney General of the State of West Virginia raises four issues
on appeal. None of these issues warrants the Board’s review.

A.

Stated briefly, the State basically argues that the Region should
have, but did not, consider whether the site for the facility meets
applicable legal and safety standards. The Region had dismissed con-
sideration of this issue because in its opinion the issue was unrelated
to the proposed addition of a spray dryer and because the siting
issue had been addressed in the original permit determination in
1983. According to the ground rules set by the Region when it solic-
ited public comment on the permit modification, “only those sections
of the permit affected by the modification shall be subject to review
by the Agency or by the public.” Region Response to Petitions at

14. On appeal the State argues that siting issues may be properly
    raised in this instance since, as provided in 40 C.F.R. §270.41(c),
    there is “new information or standards indicating that a threat
    to human health or the environment exists which was unknown at
    the time of permit issuance.” According to the State, this criterion
    is met by an Ohio statute (no citation supplied) that was added
    to the Ohio Revised Code in 1984. The State says the statute pro-

operating and monitoring requirements, such as, total feed rate, including limitations
on the waste feed rate and auxiliary fuel to each incinerator (limited to the range
of 49 million Btwhr to 97.8 million Btw/hr heat input (3 operating hour average));
requirements for monitoring and recording the feed rates for pumpable and gaseous
materials; restrictions on waste feed containing any chemical constituents listed in
40 C.F.R. Part 261, Appendix VIII, which have a heat of combustion lower than
carbon tetrachloride; mandatory temperature ranges in the secondary combustion
chamber while burning hazardous waste (a minimum temperature of 983 degrees
Celsius (1800 degrees Fahrenheit) or 1205 degrees Celsius (2200 degrees Fahrenheit),
subject to the results of the trial burns; minimum oxygen concentrations in the flue
gas leaving the electrostatic precipitator; limitations on total hydrocarbon concentration
in the flue gas leaving the wet scrubber; maintenance at all times of the design
particulate removal efficiency of the electrostatic precipitator; and cut off of all hazard-
ous waste feed when certain operating limits are exceeded or if there is a loss of
draft (negative pressure) for a period of two (2) seconds or longer.

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 119

hibits locating the active components of certain hazardous waste fa-
cilities within 2,000 feet of “any residence, school, hospital, jail or
prison” or within “[a]ny flood hazard area” if the applicant is unable
to show that it can withstand certain flood conditions.

We do not believe that West Virginia has made its case by relying
on this eight year old Ohio Code provision. First, as a result of
administrative appeals, the original permit did not become effective
until January 25, 1985, meaning that as a purely technical matter
the so-called “new information or standards” was actually not new
when the permit became fully effective.19 Therefore, section 270.41(c)
is not available for the use specified by the State. Second, even
if the initial permit issuance date (1983) rather than the final permit
issuance date (1985) is used as the point of reference, the State’s
petition does not identify, allege, or single out even one feature of
the facility that arguably causes the facility to contravene the Ohio
Code provision. By this omission the State’s allegation regarding the
applicability of section 270.41(c) is obviously incomplete and therefore
fails for a general lack of specificity. See Vermont Yankee Nuclear
Power Plant Corp. v. NRDC, 485 U.S. 519, 553-54 (1978); In the
Matter of RMI Company Extrusion Plant, RCRA Appeal No. 89-
20 (May 29, 1991). As to whether the Ohio Code provision represents
the kind of new information or standards contemplated by section
270.41(c), the petition also fails on that count. There is no indication
that in enacting the provision the Ohio General Assembly made a
determination that facilities sited prior to the Code provision’s enact-
ment necessarily pose a threat to human health or the environment.
Moreover, section 270.41(c) is concerned with new information or
standards that might cause the permit issuer to reevaluate whether
he correctly assessed the level of risk posed by the facility at the
time the permit was issued. In other words, is the risk calculus
materially affected by the new information or standard? In answer
to this question, we do not believe the Ohio Code provision has
any material bearing on EPA’s decision. First, the 2,000-foot restric-
tion in the Code represents a generalized, legislative determination
by the Ohio legislature rather than a factual determination respecting
the actual level of risk presented by this particular facility. EPA’s
own siting standards are not constrained by this or similar restric-
tions. According to a report in the administrative record, the Ohio
authorities in charge of administering this Code provision determined

19Under 40 C.F.R. §124.15(a), a final decision by the Regional Administrator
to issue a permit does not take effect if the permit decision is appealed in accordance
with § 124.19. Since there were appeals of the 1983 permit determination, an argument
can be made that permit issuance did not occur until the appeals process was com-
pleted in 1985. See also 40 C.F.R. § 124.19(f)(1).

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120 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

that the proposed incinerator will not pose an environmental risk
to receptors within the 2,000-foot zone.20 Second, the flood area re-
striction in the Code is addressed by EPA’s own siting standards,
and the permit restricts active portions of the facility to a level
above the 100-year flood level, which is not materially different from
the Ohio Code provision. Accordingly, we conclude that the State
of West Virginia has not met its burden on this issue.

B.

The second of the State’s four issues centers on the State’s asser-
tions that the Region has failed to “indicate that the Emergency
Response will be adequate to prevent harm” or that the Agency
“will be able to promptly help with local emergency containment
of spills before harm occurs to West Virginia’s environment and its
citizens.” West Virginia Petition at 3-4. We see no reason to review
the permit based upon these assertions. The permit’s contingency
plan specifies the procedures that WTI must follow in responding
to “fires, explosions, or any unplanned sudden or non-sudden release
of hazardous waste or hazardous waste constituents” in order to
minimize hazards to human health or the environment. See 40 C.F.R.
§ 264.51(a). As the Region stated in responding to comments, WTI’s
contingency plan

contains specific procedures to respond to an emer-
gency; [a description of] the arrangements agreed to
by the local police and fire departments, hospital,
State and local emergency response teams and con-
tractors; a list of all emergency equipment and its
location at the facility; [the] name and phone number
of [the] emergency coordinator; and an evacuation
plan for facility personnel.

Response to Comments at 23. This plan is on file at the facility,
the East Liverpool Fire Department, and the East Liverpool Hospital.
In addition, the Region has indicated that “[local emergency response
authorities will receive assistance from U.S. EPA’s and OEPA’s emer-
gency response personnel as necessary to protect public health and
the environment.” Id. at 22. Also, as the Region points out, the
facility is designed to prevent spills from reaching the Ohio River.
This is accomplished through an extensive containment system that
includes paved storage and process areas surrounded with secondary

20 See Center for Hazardous Materials Research, “Final Report: Environmental

Review of the Waste Technologies Industries Hazardous Waste Incinerator Located
in East Liverpool, Ohio,” at 3-4, 3-5 (September 1991).

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 121

containment features, and with sumps and pumps to direct spills
to storage tanks. Region Response to Petitions at 16. Thus, the record
on appeal indicates that all regulatory requirements for contingency
planning and hazard prevention pursuant to 40 C.F.R. §§ 264.30-
264.56 have been satisfied.

C.

The State’s third issue basically represents an expression of con-
cern over whether the Region will vigorously enforce WTI’s permit.
The State makes reference to certain matters that presumably are
intended to illustrate the basis for its concern; however, the State
never specifically explains why they represent enforcement defi-
ciencies, much less why they warrant any change in the Region’s
determination respecting the addition of the spray dryer.?! This list-
ing of matters over which the State purports to see laxity in the
Agency's enforcement initiatives, an allegation the Region contests,
does not, without more, establish a link to a “condition” of the permit
modification. Absent such a link, there is no jurisdictional basis for
the Board to examine these concerns, for only “condition[s] of the
permit decision” are reviewable on appeal to the Board. 40 C.F.R.
§ 124.19. The concerns expressed by the State do not contest any
specific condition of the permit modification, nor do they allege that
any of the Region’s permit determinations were clearly erroneous
or otherwise important enough to warrant review. Review is therefore
denied.

Our reasons for dismissing this aspect of the State’s petition
do not in any way diminish the need for the Region to exercise
its enforcement responsibilities with appropriate vigor and fairness.
The Region has acknowledged its obligation, in conjunction with the
State, to monitor WTI’s compliance on a routine basis, to enforce
the permit if instances of non-compliance occur, and, in the Region’s
words, “to provide oversight of State permits that are issued under
a U.S. EPA authorized State program.” See Response to Comments
at 39.

21The cited matters are (i) the omission of the facility owner from the original
permit, (ii) a reference to a change of load bearing capacity, (iii) the “prompt notice
requirements that WTI report violations,” and (iv) the Region “should not ignore
the lawful requirements of the governing bodies of this nation,” an allusion to a
relationship between local zoning requirements and the Federal Emergency Manage-
ment Act and other unspecified laws of the State of Ohio. West Virginia Petition
at 4.

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122 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

D.

Finally, the State argues that because of the permit’s reliance
on waste feed indicators rather than discharge indicators, and be-
cause of the deletion of an earlier proposal to analyze the spray
dryer liquid for metals and hazardous constituents,²² the Region may
not be able “to identify and quantify the discharge of hazardous
materials created during the WTI processes * * *.” This contention
does not raise any issues warranting review. In essence, the State
is arguing that the degree to which the Agency has relied on waste
feed indicators prevents the Agency from formulating a permit that
ensures that the incinerator’s emissions are protective of human
health and the environment. This argument seeks, in effect, to chal-
lenge the foundation of the Agency’s regulations prescribing operating
standards for hazardous incinerators. Those regulations make it clear,
however, that use and analysis of waste feed indicators are integral
to the attainment of performance standards. See generally, 40 C.F.R.
Part 264 Subpart O (Incinerators); 40 C.F.R. § 270.62. As stated in
the preamble to the incinerator regulations,

A comprehensive analysis of the hazardous or-
ganic constituents of a waste as it is to be inciner-
ated is necessary to identify the waste components
to which the performance standard (especially the
destruction and removal requirement) will apply.

• • • [T]he analysis required * * * is necessary to
      allow EPA to define operating conditions necessary
      to incinerate the waste feed in compliance with ap-
      propriate performance standards.

46 Fed. Reg. 7668-69 (January 23, 1981). These regulations were
drafted in complete recognition of the fact that it is impossible to
monitor and quantify every single pollutant that may be potentially

22Such a requirement was in the draft modification proposal but was subsequently
deleted in response to WTI’s comments. In its comments on the draft permit, WTI
objected to performing these analyses on the grounds that they were “completely
unreasonable, * * * time consuming, expensive, and would provide absolutely no useful
information.” See Response to Comments at 43 (quoting WTI). In response, the Region
acknowledged the technical difficulties but it did not completely accept WTI’s argument
regarding the utility of the information that could be derived from the analyses.
It nevertheless agreed to delete the provision from the permit with the understanding
that “the U.S. EPA has decided to characterize the scrubber water during the trial
burn to include analyses for total soluble hazardous constituents and condensable
metals * * *.” Id. In this manner, EPA will be able to set operating requirements
in the permit so that the scrubber water will not interfere with the attainment
of performance standards.

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 123

emitted from a hazardous waste incinerator. See, e.g., 46 Fed. Reg.
at 7670, 7673. Although this means that the Region may never pos-
sess a definitive list of compounds coming out of the stack, a variety
of other measures ensures that any such compounds will not present
a threat to human health or the environment. These measures in-
clude carefully analyzing the waste feed; ensuring that the inciner-
ator only burns the types of wastes that have been the subject of
analysis; ensuring a 99.99% destruction and removal efficiency (DRE)
for principal organic hazardous constituents (POHCs)²³ during the
trial burn;²⁴ and limiting carbon monoxide (CO) emissions to 100
parts per million to ensure that the incinerator is operating efficiently
(see note 16, supra).²⁵ According to available scientific data, these
measures ensure that hazardous constituents are not emitted in
amounts that would present a threat to human health. Accordingly,
to the extent the State’s arguments seek to fault the Region for
not accounting for every single pollutant potentially emitted from
the facility, they completely misconstrue the nature of the Agency’s
regulatory program for controlling emissions from hazardous waste
incinerators.26 Furthermore, since these arguments are in reality di-
rected at the regulatory program itself, rather than the permit modi-
fication under consideration, the arguments are outside the scope
of the proposal and, hence, outside of the scope of matters that

23The Agency designates as POHCs those hazardous constituents that are most
difficult to destroy, thereby ensuring that less stable hazardous organic constituents
in the waste feed are also destroyed. See 46 Fed. Reg. 7669 (January 23, 1981);
40 C.F.R. §§270.62(b), 264.342. These POHCs must be destroyed or removed as re-
quired by the applicable performance standard.

24More precise information about the pollutants will be derived from the trial
burn and will be used to set operating parameters for the incinerator and related
components.

25CO concentration in stack emissions is considered a conventional indicator of
combustion efficiency. In addition, maintaining CO levels at less than 100 ppm ensures
that emissions from products of incomplete combustion do not pose an unacceptable
health risk. See Guidance on PIC Controls for Hazardous Waste Incinerators, Volume
V of the Hazardous Waste Incineration Guidance Series at 1-1 (April 1990).

26 As the Region’s response to the petition makes clear, the State ignores the
numerous mechanisms in place that allow U.S. EPA to determine whether emissions
limits are being complied with. To conclude that the installation of the spray dryer
would ultimately cause increased emissions without addressing other factors contribut-
ing to emissions is not accurate. Several factors under the control of WTI can be
adjusted to reduce stack emissions, i.e., a) waste feed characteristics; b) waste feed
rates; c) incinerator operating conditions such as pressure, temperature, residence
time, and superficial velocity; and d) air pollution control equipment operating condi-
tions such as the number of ESP fields to be operated and liquid to gas ratio in
the wet scrubber.

Region Response to Petitions at 18 (citations omitted). Nowhere is there any indication
that the Region’s reliance on waste feed analysis is in lieu of necessary, complementary
provisions for monitoring emissions and operating conditions at the facility.

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124 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

rected at the regulatory program itself, rather than the permit modi-
fication under consideration, the arguments are outside the scope
of the proposal and, hence, outside of the scope of matters that
may be heard on appeal. Therefore, the issue the State raises is
not subject to review on appeal of the permit modification.

STEIN/SOS AND KUSIC APPEALS

Petitioners Constance W. Stein (individually and on behalf of
SOS) and Samuel N. Kusic contend that the Region’s responses to
comments were non-responsive and clearly erroneous and that each
response should be reviewed because each such decision constitutes
an abuse of discretion and is contrary to the law or public policy.
Stein and Kusic Petitions at 1. Mr. Kusic also contends that each
such decision is arbitrary and capricious. In addition, Mr. Kusic ar-
gues that the Region’s notice of the February 3, 1992 modification
was defective because it was dated February 3, 1991.

Although both Petitioners have correctly stated the standard for
granting review under 40 C.F.R. § 124.19, neither identifies any dis-
crete finding of fact or conclusion of law made by the Region which
they contend was clearly erroneous or otherwise warrants review.
Rather, both Petitioners seek review of each of the Region’s responses.
Such a request fails to provide the required statement of reasons
supporting review.27 See 40 C.F.R. § 124.19 (petitions for review shall
include a statement of reasons supporting review).

Mr. Kusic’s argument that notice of the February 3, 1992 modi-
fication was defective is without merit. The Region has acknowledged
that its original notification letter contained a typographical error,
ie., it was dated February 3, 1991, rather than February 3, 1992.
As the Region notes, however, the error was discovered and corrected

27On April 30, 1992, the Board received a submission from Ms. Stein and SOS
entitled, “Reply to WTI’s Motion to Dismiss and Cross Motion for Sanctions” (herein-
after “reply”). In this reply, Ms. Stein refuted WTI’s assertion that the petition should
be dismissed. See note 1, supra. In so doing, however, the reply launched a personal
attack on Charles H. Waterman III, WTI’s attorney, accusing him of, among other
things, unscrupulous and unethical behavior. On May 7, 1992, WTI submitted a motion
to strike the reply or at least those parts of the reply personally attacking Mr.
Waterman. See Motion of Waste Technologies Industries to Strike Reply of Constance
W. Stein and SOS to WTI’s Motion to Dismiss and Motion to Strike the Cross Motion
for Sanctions. WTI’s motion to strike is granted. The reply is replete with inflammatory
language and unsupported attacks on Mr. Waterman’s character and competence.
Because these attacks appear throughout the reply and are intertwined with the
substantive arguments, the entire document is hereby stricken from the record on
appeal.

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WASTE TECHNOLOGIES INDUSTRIES EAST LIVERPOOL, OHIO 125

shortly thereafter and neither Mr. Kusic nor anyone else has been
prejudiced by the error. (We note that, despite the error, Mr. Kusic’s
appeal was timely).

SIERRA CLUB APPEAL

In a one page letter objecting to the spray dryer modification,
the Sierra Club states:

[s]eientific procedure mandates that a baseline
study be conducted before the test burn. This must
be done to establish the existing levels of chemical
compounds that already exist in the biosphere (hu-
mans, air, water, soil, plants and animals) within
a proscribed [sic] affected area.

In the absence of the baseline study, the results
of a test burn will be questioned by the scientific
community.

Sierra Club Petition (emphasis in original). This objection, however,
does not raise any substantive issue for review with regard to the
spray dryer modification. Rather, it suggests the addition of a new
permit requirement unrelated to the modification. Moreover, the peti-
tion cites no regulatory or scientific basis for such a study in the
present context. The petition therefore fails to satisfy the require-
ments for review under 40 C.F.R. § 124.19.

HICKS APPEAL

Carol Hicks raises a total of three issues on appeal. These are:
(1) the spray dryer should be considered a major design change re-
quiring new modeling and risk analysis because it could have a
“major impact on both the air quality and overall plant operation
which were not previously, correctly evaluated.”; (2) use of the spray
dryer will increase stack emissions and result in new combinations
of chemicals and metals being released into the environment; and
(3) the effective stack height would be lowered because of heat loss
caused by the spray dryer design, making the air model previously
used incorrect.28 For the following reasons, review is denied.

28Ms. Hicks concludes that the permit process should be reopened by the Ohio
EPA. To the extent her request is directed to the Ohio EPA, not the U.S. EPA,
it is obviously misdirected and will receive no consideration from us. To the extent
the request may have also been intended for the U.S. EPA, it is denied for the
reasons stated in the text above.

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126  ENVIRONMENTAL ADMINISTRATIVE DECISIONS

First, the addition of the spray dryer was in fact classified as a major design change, as Ms. Hicks requests. It was analyzed as a Class 3 modification, that is, one that “substantially alter[s] the facility or its operation.” 40 C.F.R. § 270.42(d)(2)(iii). Although, as the Region acknowledges, the change is a significant one, it nevertheless does not require WTI to revisit the 1983 permit by developing new models or implementing a new risk assessment, and Ms. Hicks has not pointed to any information in the record or elsewhere that would warrant reopening the original permit in this way.²⁹

Second, the modification does not allow for any increase in emissions from the facility. In fact, the modification requires WTI to comply with more stringent performance standards. The modification adds the following conditions:

I.C.4.(e)—The incineration system shall meet the emission limits set forth for metals, hydrogen chloride, and chlorine under the final Boilers and Industrial Furnaces rule promulgated by the U.S. EPA on February 21, 1991, as amended.

C.4.(f)—The incineration system shall not emit pollutants in amounts that pose a threat to human health and the environment. Such limits shall be determined from the actual emission factors measured/calculated from the trial burn.

Thus, even if the addition of the spray dryer were to have an effect on emissions, WTI is required to take those measures necessary in order to comply with the more stringent requirements in the modified permit (such as adjusting waste feed characteristics and/or waste feed rates). If the facility’s operating conditions are exceeded, the waste feed will be automatically shut off and WTI may be subject to enforcement action.

Finally, Ms. Hicks asserts that the Region “has failed to prove that the exit temperature from the stack would be adjusted to that used for the air dispersion modeling.” Specifically, Ms. Hicks asserts

²⁹ We note that the Region has undertaken a screening risk assessment to determine whether the facility poses any unacceptable risks to human health and the environment. In addition, a second risk assessment will be conducted utilizing the results of the trial burn and meteorological data and taking into account terrain, demography, receptors, and local climatic conditions. The resulting data will allow for the establishment of operating conditions protective of human health and the environment.

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that the spray dryer will cause a reduction in the temperature of
gases exiting the stack and that without “additional make up of
heat, the effective stack height will be lowered.” Appeal at 1. Accord-
ing to Ms. Hicks, the original air modeling was therefore wrong.
This argument fails to convince us that review is warranted. As
the Region stated in its Response to Comments (p.9), the spray dryer
addition will have no impact on the outlet temperature. That is,
a loss of heat would result even without the spray dryer addition
and, in any case, a reheater will ensure that flue gas temperature
is raised to 190 degrees Fahrenheit (the temperature used for the
original air dispersion modeling). Moreover, the Region has indicated
that it is currently conducting a risk assessment (see footnote 29)
“based on refined dispersion models and site specific meteorological
data” and that the resulting information will be used to establish
emissions parameters protective of human health and the environ-
ment. Accordingly, review is denied.

CONCLUSION

This matter is remanded and the Region is ordered to withdraw
its proposal to modify the permit by adding the Port Authority’s
name as co-permittee. No appeal of the remand will be necessary
to exhaust administrative remedies under 40 C.F.R. § 124.19(f)(1)(ii).

None of the remaining issues raised by the several petitioners
satisfies the requirements for review under 40 C.F.R. § 124.19. As
noted above, under longstanding Agency policy, discretion to review
a permit decision is to be “sparingly exercised.” 45 Fed. Reg. 33,412
(May 19, 1980). In requesting that the Board exercise this discretion,
“a petition for review must not only identify disputed issues, but
demonstrate that special and important reasons necessitate review,
e.g., a conflict between the permit decision and an applicable statute
or regulation, or a conflict between the Regions regarding an impor-
tant policy matter that requires uniformity.” In the Matter of Waste-
Tech Services and BP Chemicals America, Inc., RCRA Appeal No.
88-8 at 3 n.2 (Sept. 22, 1988) (emphasis in original). Based on the
petitions for review, Regions V’s response, WTI’s submission, and
the record on appeal, we conclude that Petitioners have failed to
carry their burden under 40 C.F.R. § 124.19. Accordingly, the peti-
tions for review are denied.®°

So ordered.

30 Since the remand gives the Port Authority the relief it has requested, its appeal
becomes moot. Therefore, its petition for review is denied for that reason.

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