Waste Technologies Industries

Plain-English summary

Waste Technologies Industries operated a hazardous-waste incinerator in East Liverpool, Ohio. Greenpeace and other petitioners challenged an EPA letter approving post-trial-burn operations, while the City of Pittsburgh and West Virginia challenged a later letter that imposed additional operating restrictions after a carbon-tetrachloride destruction-efficiency problem. The Environmental Appeals Board held that both letters implemented conditions already contained in the existing RCRA permit and were not final permit decisions or permit modifications subject to Board review. It dismissed both petitions for lack of jurisdiction.

Decision snapshot

• Cited authorities: RCRA § 3005(c)(3); 40 C.F.R. §§ 124.2, 124.15, 124.19, 270.41, 270.42, 270.62, and 264.345.
• Outcome: Both petitions were dismissed for lack of jurisdiction.
• Key point: The EAB reviews final permit decisions, not routine implementation of conditions already contained in an effective permit.

Full text (EPA EAB public release)

+724 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF WASTE TECHNOLOGIES
INDUSTRIES

RCRA Appeal Nos. 93-7 & 93-9

ORDER DENYING REVIEW FOR LACK OF JURISDICTION

Decided June 21, 1993

Syllabus

This action involves two petitions relating to the operation of the Waste Tech-
nologies Industries (“WTI”) hazardous waste incinerator in East Liverpool, Ohio. Both
petitions challenge actions taken by U.S. EPA Region V upon receipt of the results
of a trial burn at the WTI facility. One petition, filed by Greenpeace, Inc., Teresa
Swearingen, and Alonzo Spencer, seeks review of an April 6, 1993 letter from the
Region to WTI approving the commencement of post-trial burn operations. The second
petition, filed jointly by the City of Pittsburgh and the State of West Virginia, seeks
review of an April 12, 1993 letter from the Region to WTI imposing two additional
conditions for operation during the post-trial burn period.

Held: The Board lacks jurisdiction to review either of these letters and the
petitions must therefore be dismissed.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Reich:

I. BACKGROUND

This action arises from the implementation of a Resource Con-
servation and Recovery Act (RCRA) permit issued to Waste Tech-
nologies Industries (“WTI”) to construct a commercial hazardous
waste management facility in East Liverpool, Ohio. The permit was
issued by U.S. EPA Region V on June 24, 1983, and became effective
on January 25, 1985. The facility is designed to incinerate inorganic
wastes in a kiln and secondary combustion chamber.

Construction and operation of the WTI facility has been highly

controversial. Previous appeals, involving earlier stages of the permit-
ting process, were filed with the Agency and addressed in In re

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Waste Technologies Industries, RCRA Appeal No. 83-5 (Adm’r, Dec.
17, 1984) and In re Waste Technologies Industries, East Liverpool,
Ohio, Appeal Nos. 92-7 et al. (EAB, July 24, 1992). Neither of those
two previous decisions, however, was challenged in a Federal circuit
court. See West Virginia v. Waste Technologies, F.2d ;
36 ERC 1457, 1458 (4th Cir. 1993). The particular issues involved
in the current appeals arise from the completion of a test burn by
WTI and the actions taken by Region V in response to the test
burn results.

Two petitions for review have been filed with the Board. The
first was filed by Greenpeace, Inc., Teresa Swearingen and Alonzo
Spencer. As discussed more fully below, they appeal the issuance
of a letter by Region V on April 6, 1993, approving the beginning
of the post-trial burn period of operation. The second petition was
filed jointly by the City of Pittsburgh and the State of West Virginia.
This petition challenges the issuance of a letter issued by Region
V on April 12, 1993, imposing two additional restrictions on WTI’s
operation during the post-trial burn period. Both petitions were time-
ly filed and have been consolidated for decision. For the reasons
discussed below, both petitions are denied for lack of jurisdiction.

II. DISCUSSION
A. Trial Burn

The trial burn was conducted pursuant to a trial burn plan
approved by Region V on January 8, 1993. The January 8 approval
letter provided in part:

Following the trial burn, WTI must submit for U.S.
EPA review and approval a certification of compli-
ance with permit emission limits for carbon monoxide
(Condition C.13 of the permit) and particulate matter
(Condition C.4 of the permit). Such certification must
include sufficient preliminary test data to document
compliance. Until the U.S. EPA approves such certifi-
cation, WTI is not authorized to burn hazardous
waste pursuant to Condition C.13 of the permit.

Letter from Valdus Adamkus, Regional Administrator, Region V to
WTI, dated January 8, 1993, at 2.

WTI conducted the trial burn testing during the period between
March 10 and March 18, 1993. On March 24, WTI submitted the

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726 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

certification required by the January 8 approval letter. Region V
(and Ohio EPA) requested that one of the test burns be repeated,
and it was on March 30. Data from this run were submitted to
Region V on April 2.

On April 6, 1993, Region V issued a letter indicating that it
had reviewed the emission certifications and found them in compli-
ance with the January 8 approval letter and applicable permit condi-
tions. Accordingly, the letter stated that “WTI is hereby approved
to begin the post-trial burn period of operation, subject to the limita-
tions of Conditions C.4, C.13, C.15, and all other applicable conditions
of the RCRA permit.” As previously noted, the Greenpeace et al.
petition for review relates to this approval.

On April 12, 1993, Region V sent another letter to WTI. As
stated in that letter, the Region was unaware, at the time of its
April 6 letter, of a problem concerning the destruction and removal
efficiency (“DRE”) of carbon tetrachloride, one of the three principal
organic hazardous constituents (“POHCs”), during condition 2 of the
trial burn, involving burning of aqueous waste. Data included in
an April 2 letter from WTI indicated that during condition 2, the
required 99.99% DRE for carbon tetrachloride was not achieved. (The
DRE was achieved or surpassed for carbon tetrachloride under other
trial burn conditions and for the other POHCs under all conditions.)

In light of this information, Region V determined that the follow-
ing action must be taken “pursuant to Condition C.13(d) of the effec-
tive RCRA permit”:

1. Since WTI has not demonstrated that it can achieve the
   DRE performance standard of Condition C.4 for each
   POHC tested in the aqueous waste, WTI shall cease feed-
   ing aqueous waste to the incinerator.

2. Since WTI has not demonstrated that it can achieve the
   DRE standard of Condition C.4 for each POHC tested at
   the maximum total feed rate of 32,708 lb/hr, WTI shall
   not feed the incinerator at a total rate greater than 20,375
   lb/hr (i.e., the total feed rate demonstrated during trial
   burn condition 3).

Letter from Valdus Adamkus to WTI, dated April 12, 1993, at 1-

2. This letter forms the basis of the joint Pittsburgh/West Virginia
   petition for review.

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WASTE TECHNOLOGIES INDUSTRIES 727

For context, we note that the regulatory provisions governing
the test burn and subsequent operation are found at 40 C.F.R.
§ 270.62. According to 40 C.F.R. §270.62(b\10), operating require-
ments in the final permit shall be based on the trial burn test results
and established as a permit modification pursuant to §270.42. In
the interim, § 270.62(c) provides, in part:

(c) For the purposes of allowing operation of a new
hazardous waste incinerator following completion of
the trial burn and prior to final modification of the
permit conditions to reflect the trial burn results,
the Director may establish permit conditions, includ-
ing but not limited to allowable waste feeds and oper-
ating conditions sufficient to meet the requirements
of § 264.345 of this chapter, in the permit to a new
hazardous waste incinerator. These permit conditions
will be effective for the minimum time required to
complete sample analysis, data computation and sub-
mission of the trial burn results by the applicant,
and modification of the facility permit by the Direc-
tor.

(Emphasis added.)
B. Greenpeace et al. Petition for Review

Greenpeace, Teresa Swearingen, and Alonzo Spencer filed their
petition (hereinafter referred to as the “Greenpeace Petition”) on May
6, 1993. Greenpeace challenges “EPA’s grant of authorization for WTI
and Von Roll to begin commercial operation.” 2 Greenpeace Petition,
at 7. The petition then identifies a number of reasons why petitioners
believe that this “authorization” is arbitrary and capricious, an abuse
of discretion, not in accordance with law, and not supported by sub-
stantial evidence. Greenpeace Petition, at 8-13. It seeks, among other
things, “[i]mmediate suspension of all EPA authorizations permitting
hazardous waste management, storage and incineration activities by

1Von Roll (Ohio), Inc. and Waste Technologies Incorporated are apparently both
owned by Von Roll America, Inc. In the January 8, 1993 trial burn approval letter,
Von Roll (Ohio), Inc. was authorized to act as managing partner of WTI, rather
than as an “operator” with independent decision-making authority.

2 While Greenpeace did not explicitly say so, we have interpreted this challenge
as relating to the April 6 letter, since Greenpeace identifies this as the letter which
“permitted WTI to begin commercial operation.” Greenpeace Petition, at 6.

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728 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

WTI and Von Roll (Ohio) at their East Liverpool, Ohio facility.”
Greenpeace Petition, at 14.

In its petition, Greenpeace states that “[t]he Environmental Ap-
peals Board has jurisdiction to hear this petition pursuant to, inter
alia, 40 C.F.R. § 124.19.” Greenpeace Petition, at 1. In an order dated
May 10, 1993, the Board stated that “[t]his jurisdictional statement
is insufficient to determine Petitioners’ legal basis for arguing that
the Board has jurisdiction over this matter.” The Board ordered peti-
tioners to file a brief explaining “the precise basis” on which they
were relying in asserting the Board’s jurisdiction. The Region was
then directed to file a response on the jurisdictional issue. Greenpeace
filed a supplemental brief on May 27, 1993, and the Region its re-
sponse on June 14, 1993. We now conclude that this Board has
no jurisdiction to review the April 6 approval by Region V. The
Greenpeace Petition is accordingly hereby denied.

Greenpeace’s jurisdictional argument is succinctly stated as fol-
lows:

The Environmental Appeals Board has jurisdiction
to hear this petition pursuant to 40 C.F.R. § 124.19.
The analysis supporting jurisdiction here is simple
and straightforward. The decision at issue is a deci-
sion by EPA to approve what in effect is a final
RCRA permit for operation of a hazardous waste in-
cinerator for the period after trial burn and prior
to EPA’s ultimate decision on the permit application
for long term operation. This permit while “tem-
porary” is final for all practical purposes and Peti-
tioners will be irreparably harmed if review is post-
poned until issuance of the long term permit.

Greenpeace Supplemental Brief, at 1. Greenpeace further states that
it is no defense to the Board’s jurisdiction that EPA did not follow
the 40 C.F.R. Part 124 procedure for permit decisions. Id.

In its response, Region V disputes the contention that the Board
has jurisdiction. It notes that, under 40 C.F.R. § 124.19(a), the Board
has jurisdiction to review a “final permit decision” issued under
§ 124.15. Section 124.15(a) defines final permit decisions to include
“a final decision to issue, deny, modify, revoke and reissue, or termi-
nate a permit.” The Region argues that the April 6 letter is not
a final permit decision as defined in § 124.15(a).

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The Region notes that the permit, which became effective in
1985, contained provisions for post-trial burn operation consistent
with 40 C.F.R. §270.62(c), such as Conditions C.4, C.13 and C.15.
In its January 8 approval letter, Region V added an interim condition
pursuant to §270.62(c), requiring the permittee to certify compliance
with permit emission limits for carbon monoxide and particulate mat-
ter prior to proceeding to post-trial burn operation. This certification
requirement was incorporated into the trial burn plan by the January
8 approval letter and the final trial burn plan incorporated into
the permit.3

In the Region’s view, the April 6 letter was not a “final permit
decision” or even an “authorization” (as that term is used in defining
a “permit” under 40 C.F.R. § 124.2.) It is neither the issuance of
a permit, nor the denial, modification, revocation and reissuance,
or termination of such. “It simply acknowledged that WTI had satis-
fied certain requirements for proceeding into post-trial burn oper-
ation, which is authorized by WTI’s permit.” Region’s Response to
Greenpeace Supplemental Brief, at 3. Requiring a certification of
compliance was intended only as an additional “check” on the per-
formance of the incinerator. “To treat conditions like that imposed
in WTI’s trial burn plan as requiring full permitting procedures would
obviously impair the regional offices’ discretionary authority to re-
quire checkpoints at various points in the process, or other minor
steps in permit implementation that are beyond what is required
in the regulations.” Jd. at 4.

We believe that the Region is correct. The permit was validly
issued and became effective in 1985 (and was subsequently modified
in 1992). At the time of the April 6 letter, the permit already con-
tained the interim certification and approval requirements by virtue
of the January 8, 1993 letter, which was issued pursuant to
§ 270.62(c).4 WTI submitted its certification and the Region approved
post-trial burn operation, in accordance with the specific requirement
that the Region’s approval be obtained prior to such operation.

3 Condition C.6 requires testing in accordance with the trial burn plan. The Janu-
ary 8 letter approved Revision 4 of the Trial Burn Plan. It also provided that the
letter, with the certification requirements, “is part of and is hereby incorporated into
the approved Trial Burn Plan.”

4Greenpeace cannot now challenge the approval mechanism itself. First, it is
questionable whether establishing interim conditions pursuant to § 270.62(c) constitutes
a reviewable “final permit decision” under § 124.19. Second, even if the January 8
letter were considered to be a “final permit decision,” a petition for review would
have to have been filed within 30 days, pursuant to 40 C.F.R. §124.19(a). That
time has long since passed.

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Greenpeace now challenges the Region’s approval of the post-trial
burn operation.

This is clearly a decision arising from the implementation of
a permit, rather than the issuance (or modification) of a permit.5
It is a challenge to an action expressly contemplated by the permit.
As the Board has previously stated:

The purpose of this Board is to determine whether
the permit was appropriately issued. The Board has
no oversight responsibility for the implementation of
a validly issued permit. Once we have satisfied our-
selves [that a permit has been validly issued], we
have no basis for retaining jurisdiction to address
any implementation issues that may arise.

In re General Electric Company, RCRA Appeal No. 91-7, at 9 (EAB,
Nov. 6, 1992). Since the action being complained of is one in imple-
mentation of the existing permit rather than a final permit decision
under § 124.15(a) (or a modification decision under §270.42),6 this
Board does not have jurisdiction to hear an appeal and the petition
for review must be denied.

C. Pittsburgh / West Virginia Petition for Review

The Joint Petition for Review was filed by the City of Pittsburgh
and the State of West Virginia (hereinafter referred to as the “Pitts-
burgh/West Virginia Petition) on May 11, 1993. As previously noted,
it seeks review of the April 12 letter issued by the Region. It asserts
that:

The trial burn results received by the EPA indicated
that the WTI incinerator failed to achieve the re-
quired DRE, and, accordingly, further operation is
illegal except under modified permit operating condi-
tions which have been approved in accordance with
the procedures established in EPA’s regulations.

Pittsburgh/West Virginia Petition, at 5. The petition further states
that changes to post-trial burn conditions must be made by means
of Class 2 permit modifications under 40 C.F.R. §270.42 and thus

5A discussion of the applicability of permit modification requirements is included
in the section on the Pittsburgh/West Virginia Petition, supra.

6 See note 5 supra.

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the changes were made invalidly by the April 12 letter. The petition
also argues that the EPA authorization of the plant’s post-trial burn
operation fails to protect human health and the environment, as
required by 42 U.S.C. §6925(c)(3).?7 The petition seeks, inter alia,
revocation of the WTI permit and an order to WTI and Von Roll
requiring the immediate cessation of all activities involving hazardous
waste at the East Liverpool, Ohio facility. Id. at 11.

As with the Greenpeace Petition, the Pittsburgh/West Virginia
Petition merely recites that Board has jurisdiction “pursuant to, inter
alia, 40 C.F.R. § 124.19.” Pittsburgh/West Virginia Petition, at 1. As
it did relative to the Greenpeace Petition, the Board issued an order
on May 18, 1993, requiring petitioners to file a supplemental brief
on the jurisdictional issue. This brief was filed on May 27 and a
Region V response filed on June 14.

Pittsburgh and West Virginia assert a number of alternative
bases for Board jurisdiction. First, they argue that the April 12 letter
is an “authorization,” and thus within the definition of a “permit”
under 40 C.F.R. § 124.2.8 Second, they note that the Board has au-
thority under 40 C.F.R. § 124.19(b) to review a RCRA permit condi-
tion sua sponte. Third, they argue that the letter “modifies” the
RCRA permit by changing the categories of waste to be burned and
by reducing the maximum total feed rate. They assert that such
modifications are appealable as final permit decisions under 40 C.F.R.
§§ 124.15(a) and 124.19, and pursuant to 40 C.F.R. § 270.41 (requiring
such modifications to be processed under Part 124). Fourth, they

7The petition also discusses changes in ownership and operation of the WTI
facility subsequent to the issuance of the original permit and states that the April
12 action allows what the petition describes as the “the new WTI partnership” and
Von Roll “to continue to own and operate the plant without a permit.” Pittsburgh/
West Virginia Petition, at 6-9.
8 Petitioners state that the letter, by use of the term “limited commercial operation”

in describing the April 6 approval, created ambiguity over what had been “authorized.”

The letter may have been intended to authorize the post-trial

burn period of operations as prescribed in the permit. Alter-

natively, as the facts more clearly indicate, the approval may

have been given to operate commercially outside the restrictions

pertaining to the post-trial burn based upon the review of trial

burn results. Nonetheless, in either case, the letter constitutes

an authorization within the meaning of 40 C.F.R. §124.2 and,

thus, a final permit decision.
Pittsburgh/West Virginia Supplemental Brief, at 2-3. In its response, the Region indi-
cates that the term “limited commercial operation” as used in the April 12 letter
was interchangeable with the term “post-trial burn operation.” Region’s Response to
Pittsburgh/West Virginia Supplemental Brief, at 6. As such, it covered the post-trial
burn period only, as defined in 40 C.F.R. §270.62(c). Id.

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state that the changes are appealable as modifications under 40
C.F.R. §270.42(f)(2), since Appendix I to that section lists changes
to the “permit conditions applicable during the shakedown period
. . ., the trial burn period, or the period immediately following the
trial burn” as Class 2 modifications. Finally, they argue that 40
C.F.R. § 270.62(b)(10), which “provides for modifications to a RCRA
permit after the review of trial burn results,” requires such modifica-
tions to be made in accordance with the procedures in 40 C.F.R.
§ 270.42. Since the changes at issue would be Class 2 modifications
under that section, they would be appealable to the Board.

The Region addresses each of these arguments in its response.
First, the Region asserts that its April 12 letter was not an authoriza-
tion but rather the invocation of a condition of the existing WTI
permit. This provision, Condition C.13, is entitled “Incinerator Oper-
ating & Monitoring Requirements During the Post-Trial Burn Pe-
riod.” Condition C.18(d) provides, in part:

If based upon the analytical results of the trial burn,
the permittee determines that the incinerator failed
to achieve any of the performance standards specified
in Condition C.4 of this permit, the Permittee shall
notify the Regional Administrator within twenty-four
(24) hours. Upon the request of the Regional Admin-
istrator the Permittee shall cease feeding hazardous
waste to the incinerator.

The Region interprets this provision “as authorizing the Regional
Administrator to order the facility to cease feeding all hazardous
waste, or a portion of the hazardous waste the facility is permitted
to feed, as appropriate in response to the nature of the performance
standard failure.” Region’s Response to Pittsburgh/West Virginia Sup-
plemental Brief, at 2. The Region specifically invoked this provision
in establishing the additional operating limitations and “[i]nvocation
of a permit condition is not a final permit decision.” Id. Rather,
it goes to the implementation of the existing permit.

The Region also disputes petitioner’s characterization of the addi-
tional limitations as permit modifications.

Modifications authorize activities or impose condi-
tions beyond the scope of the effective permit and
are changes to the permit. This provision, Condition
C.18(d), was in the original permit which became
effective in 1985. The provision does not contemplate

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WASTE TECHNOLOGIES INDUSTRIES 733

a permit modification; rather it authorizes the Re-

gional Administrator to request that WTI cease feed-

ing hazardous waste based on preliminary trial burn

results.

Id at 3.2

The Region makes the following additional points:

(1) 40 C.F.R. §270.42 does not apply because the changes
were not modifications, but even if they were, this section
applies only to permittee-initiated modifications and the
changes here were not initiated by WTI;

(2) 40 C.F.R. §270.62(b)(10) relates to the establishment of
operating conditions in the final permit. It does not apply
to interim restrictions during the post-trial burn period;

(3) The April 12 letter was not an “authorization” to conduct
post-trial burn operation since such operation was already
approved (by the April 6 letter) and had commenced; and

(4) The Board’s sua sponte review jurisdiction is limited to
conditions established under Part 124, and the restrictions
at issue were not established under Part 124. In any
event, the Board must act under this authority within
30 days of service of notice of the Regional Administrator’s
action.

We believe that the Region’s analysis is essentially correct. None
of the bases cited by petitioners support Board jurisdiction in this
case,

The most significant issue raised by the Pittsburgh/West Virginia
Petition is whether the changes made by the April 12 letter are
“modifications” to the WTI permit. We conclude that they are not
modifications. The WTI permit specifically contemplated, in Condition
C.13(d), that additional restrictions on the waste feed might be im-

9The Region notes that if it had to go through modification procedures under
40 C.F.R. parts 270 and 124, this could allow WTI to operate without restrictions
on waste feed during the pendency of the modification process since contested permit
conditions are stayed pending appeal. “Paradoxically, the effect of Petitioners’ argu-
ment would be to allow WTI to operate without the waste feed restrictions imposed
through the April 12th letter pending completion of EAB review.” Region’s Response
to Pittsburgh/West Virginia Supplemental Brief, at 4.

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734 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

posed based on the results of the test burn. That is precisely what
happened here. It is true that the April 12 letter added specificity
to the permit in this respect but that does not make it a modification.

The definition of a modification was discussed at some length
in a recent Board opinion, In re General Electric Company, RCRA
Appeal No. 91-7 (EAB, Apr. 13, 1993). In that case, the issue was
whether revision by the Region of an interim submission (such as
a RCRA Facility Investigation plan) constituted a permit revision.
In addressing this issue, the Board stated:

When the Region revises an interim submission, it
is exercising its authority under the existing permit
language to ensure that the contemplated studies
and investigations are adequate for selection of cor-
rective remedies. The Region’s revisions are part of
a process contemplated in the original permit by
which the general terms of the original permit are
made more specific. Thus, when the Region makes
such revisions, it is fulfilling the terms of the permit,
not changing them.
In re General Electric, supra, at 11-12.

Similarly, here the Region’s actions in the April 12 letter were
“part of a process contemplated in the original permit by which the
general terms of the original permit are made more specific.” The
Region’s actions were taken pursuant to permit Condition C.13(d)
and §270.62(c), which address interim operating conditions following
completion of the trial burn and prior to final modification of the
permit to reflect trial burn results. They are not modifications. Be-
cause they are not modifications, there is no “final permit decision”
under § 124.15 or Board jurisdiction under § 124.19.1°

Since the actions being challenged are not modifications,
§§ 270.41 and 270.42 are also inapplicable.11 In addition, there is
no basis for sua sponte review by the Board under § 124.19(b) since
the April 12 letter does not impose a condition under Part 124.

10This is true even if the April 12 letter were considered an “authorization.”
The test for Board jurisdiction under § 124.19(a) is whether the action is a “final
permit decision” under § 124.15(a), not whether the action meets the definition of
a permit under § 124.2. This means there must be one of the actions (issuance, modi-
fication, etc.) identified in § 124.15(a).

11In any event, the Region is correct that §270.42 applies only to permittee-
initiated changes, and therefore is inapplicable for that reason as well.
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WASTE TECHNOLOGIES INDUSTRIES 735
Finally, §270.62(b)(10) is inapplicable because, as the Region asserts,
it applies only to the setting of “the operating requirements in the
final permit.” 12 Limits covering operation “following the completion
of the trial burn and prior to final modification of the permit condi-
tions” are established under § 270.62(c), which does not contemplate
use of § 270.42 modification procedures. Thus, none of the provisions
cited by petitioners provides Board jurisdiction.

III. CONCLUSION

The Board does not have jurisdiction to consider either the April
6 letter raised in the Greenpeace Petition or the April 12 letter
covered by the Pittsburgh/West Virginia Petition. Accordingly, both
petitions must be, and hereby are, dismissed for lack of jurisdiction.

So ordered.

12 The Region has acknowledged that, consistent with § 270.62(b)(10), it must follow
the procedures in §270.42 for modifying the permit as necessary to incorporate final
operating conditions. Region’s Response to Pittsburgh/West Virginia Supplemental
Brief, at 7. That section contemplates both public participation and the possibility
of appeal for the more significant modifications. In fact, the earlier appeal in RCRA
Appeal Nos. 92-7 et al., in which both the City and State participated, involved
modifications under § 270.42.

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