Ash Grove Cement Company (Board decision, November 14, 1997)

Plain-English summary

Ash Grove Cement Company operated a Portland cement plant in Chanute, Kansas, that used hazardous waste as fuel and received a federal RCRA hazardous-waste-combustion permit. Ash Grove and a coalition of petitioners challenged different parts of the permit, including the Region's indirect-exposure risk assessment, mercury and thallium controls, waste-analysis conditions, and consultation and public-comment issues. The Environmental Appeals Board denied review of most of the challenges, finding that the Region's permit-specific risk assessment was permissible and that the petitioners had not shown clear error on technical issues. It remanded the mercury and thallium feed-rate limits and related monitoring conditions for the Region to explain their protective basis and legal authority, while leaving the other challenged conditions in place.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.10, 124.18, 124.19, 260.10, 261.2, 266.102, 270.3, 270.10, and 270.32; 42 U.S.C. §§ 6924, 6925, and 6926; 50 C.F.R. §§ 402.01, 402.02, and 402.13.
• Outcome: Most permit challenges were denied, while the mercury and thallium limits and monitoring conditions were remanded for limited explanation.
• Key point: EPA may use guidance in a permit-specific indirect-exposure risk assessment, but the permit must explain the protective basis and legal authority for challenged controls.

Full text (EPA EAB public release)

387

ASH GROVE CEMENT COMPANY

IN RE ASH GROVE CEMENT COMPANY
RCRA Appeal Nos. 96-4 & 96-5

ORDER DENYING REVIEW IN PART
AND REMANDING IN PART

Decided November 14, 1997

Syllabus
On August 15, 1996, the United States Environmental Protection Agency Region VII (“Region”) issued a Resource Conservation and Recovery Act (“RCRA”) permit for hazardous waste combustion to the Ash Grove Cement Company (“Ash Grove”) for its portland cement plant located in Chanute, Kansas. Petitions for review of the final permit were filed by Ash Grove and a coalition of petitioners (“Rollins et al.”), including Rollins Environmental Services, Inc., a national incineration company that is a competitor of cement companies such as Ash Grove. Most of the issues presented in the petitions filed by Ash Grove and Rollins et al. pertain to the Region’s conduct of an indirect exposure risk assessment during the permitting process. The petitioners challenge the risk assessment process and the Region’s ultimate decisions on permit conditions that were based upon the results of the risk assessment. Ash Grove challenges the Region’s authority to conduct an indirect exposure risk assessment during the RCRA permitting process for this facility because the recommendation to conduct this type of risk assessment came from Agency guidance documents. Ash Grove also claims that the results of the risk assessment are invalid and unreliable due to errors in the risk assessment methodology. Ash Grove’s principal objection, however, is to the permit conditions requiring it to conduct environmental monitoring for mercury (in fish, water, and soil) and for thallium (in soil). Rollins et al. claim that several errors and oversights in the risk assessment process represent hazards to human health or the environment that were not adequately addressed by the Region during the permitting process. Rollins et al. also specifically challenge the protectiveness of the permit limits on mercury and thallium in light of the risk assessment results. In addition to challenges related to the risk assessment, Rollins et al. raise several miscellaneous issues in their petition for review. HELD: With regard to the risk assessment and related issues:
•

The Region’s performance of an indirect exposure risk assessment during the permitting process for the Ash Grove plant was neither improper nor illegal. The Region may draw upon Agency guidance documents in the permitting context, provided that any particular application of guidance is supported by a permit-specific analysis. Here, the Region’s deci-

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sion to conduct an indirect exposure risk assessment was appropriately based on a finding specific to Ash Grove. (Section II.B.2.)
•

The Board declines to review any of the risk assessment methodology issues raised by Ash Grove and Rollins et al. These issues involve matters of technical judgment on the part of the Region, and the petitioners have failed to sustain the heavy burden of persuasion that applies to requests for review of technical issues. (Section II.B.3.)

•

The Board orders a remand of the permit limits for mercury and thallium and the permit conditions requiring environmental monitoring of these substances. The Region is directed to reopen the permit proceedings for the limited purposes of: (1) providing a sufficient explanation of how the permit’s mercury and thallium feed rate limits adequately protect human health and the environment, in accordance with the Region’s obligation under RCRA’s omnibus provision; and (2) providing a revised explanation of the authority to include environmental monitoring conditions for mercury and thallium in the permit. (Section II.B.4.) With regard to miscellaneous issues raised by Rollins et al.:

•

Review is denied with regard to the permit limits on dioxins and furans. (Section II.C.1.)

•

Review is denied with regard to the permit conditions on waste analysis. (Section II.C.2.)

•

Review is denied with regard to the need for consultation with the Fish and Wildlife Service and/or authorities in Oklahoma. (Section II.C.3.)

•

Review is denied with regard to the request to reopen the public comment period, except as specifically noted in the context of the limited remand. (Section II.C.4.)

•

Review is denied with regard to the possibility of incorporating into the Ash Grove permit proposed standards for incinerators and industrial furnaces under the Clean Air Act’s Maximum Achievable Control Technology (“MACT”) program prior to the final promulgation of those standards. (Section II.C.5.)

Before Environmental Appeals Judges Ronald L. McCallum,
Edward E. Reich and Kathie A. Stein.
Opinion of the Board by Judge McCallum:
I. BACKGROUND
A. The Ash Grove Permit and Appeals
These appeals arose after the United States Environmental Protection Agency Region VII (“Region”) issued a Resource Conservation and Recovery Act (“RCRA”) permit for hazardous waste combustion to an Ash Grove Cement Company (“Ash Grove”) portland cement plant located in Chanute, Kansas. However, the appeals are only partially about Ash Grove’s Chanute facility and its permit. The appeals also reflect the national debate on hazardous waste combustion. Certain aspects of the appeals clearly emanate from the competitive interests of the incineration and cement industries at the local and national levels.

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The Ash Grove plant in Chanute, Kansas dates back to 1907. The
operations of particular relevance to these appeals, however, are of a
more recent origin. In 1986, Ash Grove began using hazardous waste
as a fuel in its cement kilns. In accordance with EPA rules, Ash Grove
initiated the process for obtaining a RCRA permit for hazardous waste
combustion at Chanute in 1991. The Region issued the federal portion
of a permit for the Chanute facility on August 15, 1996, pursuant to
the 1984 Hazardous and Solid Waste Amendments (“HSWA”) to RCRA,
42 U.S.C. §§ 6901-6992k.1
In September 1996, the Environmental Appeals Board received
two petitions for review of the Ash Grove permit pursuant to the permit appeals procedure at 40 C.F.R. § 124.19. RCRA Appeal No. 96-4 is a petition for review filed by the permittee, Ash Grove. Ash Grove challenges the Region’s decision to impose permit conditions requiring the company to conduct certain environmental monitoring activities in the vicinity of the Chanute plant. RCRA Appeal No. 96-5 is a petition for review of the Ash Grove permit filed by a coalition of petitioners (collectively “Rollins et al.”) comprised of twenty-five private individuals living in the vicinity of the Ash Grove facility, the Sierra Club, the National Citizens Alliance,2 Adans for a Clean Environment, Earth Concerns of Oklahoma,3 and Rollins Environmental Services, Inc., a national incineration company that joined this petition on behalf of a commercial hazardous waste incinerator located approximately 40 miles south of Chanute near the Kansas/Oklahoma border. Rollins et al. seek review of a variety of issues, including specific conditions of Ash Grove’s permit that they contend are not adequate to protect human health and the environment. The Cement Kiln Recycling Coalition (“CKRC”), a trade association of cement companies that burn hazardous waste as fuel, of which 1

The federal portion of the permit (Part II) covers HSWA elements of the RCRA program, such as hazardous waste combustion, that are administered by the EPA. Other RCRA program elements are covered by Part I of the permit, issued by the Kansas Department of Health and Environment (“KDHE”) pursuant to authorization by EPA under RCRA § 3006(b), 42 U.S.C.
§ 6926(b). These appeals solely relate to Region VII’s issuance of Part II.
2
The National Citizens Alliance is identified as a non-profit organization “dedicated to * * * bring[ing] about regulatory equity to the nation’s hazardous waste combustion policies.” Rollins Petition for Review at 3. 3

Adans for a Clean Environment and Earth Concerns of Oklahoma are identified only as “organizations located in Oklahoma.” Rollins Petition for Review at 3.

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Ash Grove is a member, filed an amicus brief in RCRA Appeal No. 96-5.
The brief supports many of Ash Grove’s arguments and serves as a
rebuttal to the petition filed by Rollins et al.
B. Competition in the Hazardous Waste Combustion Industry
and Regulatory Background
In part, these permit appeals reflect the ongoing industry battle
between hazardous waste incineration companies and cement companies that burn hazardous waste as fuel. Combustion is a form of hazardous waste treatment under RCRA regulations.4 Hazardous waste combustion occurs at a variety of facilities, including incinerators, boilers, and industrial furnaces.5 There is competition among the various companies engaged in hazardous waste combustion. In addition to direct economic competition in the hazardous waste market, industry groups have engaged in regulatory competition. Face-offs between incinerators and cement kilns in the regulatory arena can be explained in part by the different regulatory standards that historically have applied to various types of hazardous waste combustion facilities. Hazardous waste combustion at incinerators became subject to federal regulatory standards in the early 1980s.6 During this time, facilities such as cement kilns that burned hazardous waste as a fuel were exempt from regulations on hazardous waste combustion. See 46 Fed. Reg. 7666, 7668 (Jan. 23, 1981) (combustion of wastes primarily for recovery of thermal value is exempt from incinerator standards); 40 C.F.R. § 261.2(c)(2) (1981) (material burned for the purpose of energy recovery was not a solid waste). In 1991, EPA promulgated regulations specifically governing hazardous waste combustion at boilers and industrial furnaces (including cement kilns). 56 Fed. Reg. 7134, 7208 (Feb. 21, 1991) (codified at 40 C.F.R. Part 266, Subpart H) (“BIF rule”). More recently, EPA Regions have “called in” permit applications from boilers and industrial furnaces (“BIFs”) nationwide. U.S. EPA, Strategy for Hazardous Waste Minimization and Combustion at 22 (Nov. 1994) (“Combustion Strategy”). The purpose of the permit application “call in” is so that 4 The regulatory term for combustion is “thermal treatment,” which is defined as “the treatment of hazardous waste in a device which uses elevated temperatures as the primary means to change the chemical, physical, or biological character or composition of the hazardous waste.” 40 C.F.R. § 260.10 Thermal treatment. 5

Cement kilns are a type of “industrial furnace.” 40 C.F.R. § 260.10 Industrial furnace.

6
The incinerator regulations at 40 C.F.R. Part 264, Subpart O, were originally promulgated in 1981. 46 Fed. Reg. 7666 (Jan. 23, 1981).

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Regions may develop (or, as may be necessary, deny) individual facility permits for BIFs. See Combustion Strategy app. C at 4. The Ash Grove permit was the first BIF permit issued by the EPA. Ash Grove Petition for Review at 2; Response to Ash Grove Petition at 24. C. Issues Raised in the Appeals The Ash Grove and Rollins petitions for review set forth divergent views of the Ash Grove permit. Ash Grove contends that the permit conditions are either adequate or too onerous; Rollins et al. contend that permit conditions are too permissive and that Ash Grove ought to be subject to additional or more stringent controls. Despite different characterizations of the permit overall, both petitions express dissatisfaction with one particular element of the permit process. Ash Grove and Rollins et al. all contend that the Region’s conduct of a risk assessment for Ash Grove was flawed. The petitioners challenge both the risk assessment process and the Region’s ultimate decisions on permit conditions that were based upon the results of the risk assessment. The petitioners raise the following arguments relating to the risk assessment: By Ash Grove:
•
•
•

The Region improperly relied upon an EPA guidance document
in deciding to conduct an indirect exposure risk assessment during the BIF permitting process. Errors in the risk assessment methodology render the results of the risk assessment invalid and unreliable. Permit conditions requiring environmental monitoring programs for mercury and thallium are not justified by the risk assessment results.

By Rollins et al.:
•

Errors in the risk assessment methodology represent hazards to
human health or the environment that were not adequately
addressed by the Region. Alleged errors include: (1) failure to
strictly adhere to applicable risk assessment guidelines; (2) failure
to perform risk calculations for certain chemicals in portions of
the risk assessment; (3) failure to evaluate risks from cement kiln
dust; (4) failure to evaluate risks posed by accidents or transportation of wastes to the Ash Grove facility; (5) failure to evaluate cumulative risks from chemicals in emissions from the Ash Grove facility; (6) failure to evaluate risks from upset conditions;

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and (7) failure to evaluate risks to Native American populations
in northern Oklahoma.
Permit limits on mercury and thallium are inadequate in light of
the risk assessment results.

Rollins et al. also raise a number of miscellaneous issues that do
not directly pertain to the risk assessment, including:
•
•
•
•
•

Protectiveness of permit limits on emissions of dioxins and
furans.
Adequacy of Ash Grove’s waste analysis plan.
Failure to consult with certain federal and state agencies during
permit development.
Adequacy of the public comment period.
Incorporation of proposed emissions standards for BIFs into Ash
Grove’s permit.

Our consideration of these issues begins with a brief discussion
of the standard for obtaining review in RCRA permit appeals. We then
address issues from both petitions that relate to the risk assessment.
The miscellaneous issues raised by Rollins et al. that do not directly
pertain to the risk assessment are addressed individually following the
risk assessment discussion.
II. DISCUSSION
A. Standard for Obtaining Review of a RCRA Permit Decision
The Board’s role in reviewing final permit decisions is delineated
in 40 C.F.R. Part 124. Under these regulations, Board review will not
be granted unless an issue being raised on appeal involves:
(1)
(2)

A finding of fact or conclusion of law which is
clearly erroneous, or
An exercise of discretion or an important policy
consideration which the Environmental
Appeals Board should, in its discretion, review.

40 C.F.R. § 124.19(a). The preamble to this regulation indicates a preference for issues to be resolved at the Regional level and notes that the Board’s “power of review should be only sparingly exercised.” 45 Fed. Reg. 33,290, 33,412 (May 19, 1980). The burden of demonstrating that review is warranted is on the petitioner. Petitioners must clearly identify their objections and “explain why the Region’s previous response to those objections is clearly erroneous or otherwise worthy

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of review.”7 In re EcoEléctrica, L.P., 7 E.A.D. 56, 60-61 (EAB 1997). We
have consistently applied these standards in our consideration of permit appeals. See, e.g., In re Austin Powder Co., 6 E.A.D. 713, 715; In re Laidlaw Envt’l Services., 4 E.A.D. 870, 876 (EAB 1993); In re Beazer East, Inc., 4 E.A.D. 536, 538 (EAB 1993). B. Risk Assessment Issues As previewed in the Background section, the majority of issues raised by the petitioners relate to the risk assessment conducted by the Region during the permitting process. The challenges include the Region’s decision to perform a risk assessment, the methodology used to conduct the risk assessment, and the ultimate permitting decisions that were based on the results of the risk assessment. The issues raised in Ash Grove’s petition for review begin with a challenge to the Region’s authority to perform and use the particular type of risk assessment involved here. Ash Grove claims that the Region was inappropriately motivated to perform an indirect exposure risk assessment by Agency guidance documents regarding permit procedures for hazardous waste combustion facilities. Ash Grove Petition for Review at 5-6. The CKRC echoes Ash Grove’s challenges. CKRC Amicus Brief at 13 (“any use of any indirect exposure risk assessment in BIF permitting at this time is illegal and inappropriate”) (emphasis in original). Ash Grove also questions the validity of the risk assessment methodology. Ultimately, Ash Grove challenges the Region’s use of the risk assessment results as justification for environmental monitoring requirements in the final permit. Ash Grove objects to permit conditions requiring environmental monitoring of: i) mercury concentrations in fish and water in two local lakes, and ii) mercury and thallium concentrations in soil in the vicinity of its plant. Ash Grove Petition for Review at 2. The petition filed by Rollins et al. contains a wide array of challenges pertaining to the risk assessment. Rollins et al. support the idea of a risk assessment but identify a number of alleged inadequacies in the risk assessment methodology. However, they do not indicate how each of the identified failures impacted the Agency’s permit decisions.

7
There are a few issues mentioned in the petition from Rollins et al. that are so lacking in specificity that they do not meet the Board’s standards for review and are not discussed further in this decision. Such issues include criticisms of: arsenic feed rate limits, Rollins Petition for Review at 8 n.1; fugitive emissions, id. at 13 n.3; ambient air monitoring, id. at 16 n.5; lead emissions limit, id. at 18 n.8.

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Presumably, some element(s) of the permit would be different had the
Agency conducted the risk assessment according to the parameters
suggested by Rollins et al. Rollins et al. also pose direct challenges to
the permit’s control of mercury and thallium emissions. The permit
limits selected by the Region for these substances were based in part
on the results of the risk assessment.
In addressing this myriad of challenges relating to the risk assessment, many of which are technical in nature, we first offer some background on the BIF rule and permit conditions for cement kilns that burn hazardous waste. This discussion describes the role of risk assessment in BIF permitting generally and provides an outline of the risk assessment process used in the development of this permit (Section II.B.1). Second, we analyze the Region’s authority to perform the risk assessment in this case (Section II.B.2). Third, we consider challenges to the risk assessment methodology presented by Ash Grove and Rollins et al. (Section II.B.3). We conclude the risk assessment discussion by looking at the specific permitting decisions that were influenced by the risk assessment results (Section II.B.4).

1. The Role of Risk Assessment in the Ash Grove
   Permitting Process
   a. Risk Considerations Within the BIF Rule
   The regulatory context for the Region’s risk assessment effort in
   this case begins with the BIF rule. The BIF rule establishes emissions
   standards and other permit conditions for cement kilns that burn hazardous waste. The emissions standards in the BIF rule were derived from a risk assessment that considered adverse health effects from exposure to kiln emissions through inhalation. See 56 Fed. Reg. 7134, 7171 (Feb. 21, 1991). Inhalation of air containing chemicals and substances from kiln emissions is considered a “direct exposure pathway.”8 Consequently, the risk assessment performed during the development of the BIF rule was a “direct exposure risk assessment.”

8
An exposure pathway is a description (expressed through mathematical equations) of how released substances (e.g., chemicals in cement kiln emissions) ultimately reach receptors of interest (e.g., humans). An exposure pathway includes information about how a particular chemical or substance moves through the environment after release from its source, chemical or physical transformations that occur while in the environment, and ultimately, the mechanism by which the chemical or substance is taken up by humans (e.g., through inhalation, ingestion, or dermal contact).

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Emissions standards for facilities subject to the BIF rule are thus
“risk-based.” The BIF rule contains tables of ambient air concentrations for various substances that are calculated not to pose an unacceptable risk of cancer or other adverse health effects when inhaled. Id. at 7232-33 (codified at 40 C.F.R. Part 266 app. IV & V). Emissions limits for a particular facility are back-calculated from the acceptable ambient air concentrations, taking into account dispersion of stack emissions. Id. at 7173-7175 (describing three-tier system for determining metals emissions standards). Ultimately, the emissions standards for individual BIFs are implemented through limits on waste feed rates and specified operating parameters. Id. at 7136. The risk assessment conducted by Region VII during the Ash Grove permit process was supplemental to the BIF rule risk assessment and different in scope. The Ash Grove risk assessment was an “indirect exposure risk assessment,” designed to estimate risks of adverse health effects from non-inhalation exposures (i.e., in this context, indirect exposures) to Ash Grove emissions.9 An indirect exposure risk assessment is not required by the BIF rule, although the preamble to the rule recognizes that risks from indirect exposures contribute to overall risk in conjunction with the direct exposure (inhalation) risks that are the primary focus of the BIF rule. See id. at 7169 (“EPA recognizes that the contribution of indirect pathways may be significant”). Ultimately, the results from the indirect exposure risk assessment performed by the Region were used to justify conditions in Ash Grove’s permit that are not specifically mandated by the BIF rule.

9
Indirect exposure pathways involve intermediate steps after the release of a substance into an environmental medium (e.g., air) and before ultimate human contact. Indirect exposure pathways often involve deposition of substances onto the ground or water and uptake by plants or animals that are ultimately consumed by humans. The indirect exposure pathways considered in the Ash Grove risk assessment included: i) consumption of fish; ii) ingestion of soil; iii) consumption of above-ground vegetables; iv) consumption of below-ground (root) vegetables; v) consumption of beef; vi) consumption of milk; vii) ingestion of water; viii) dermal contact with soil; ix) dermal contact with water; and x) consumption of breast milk. Science Applications International Corporation, A Multi-Pathway Risk Assessment for the Ash Grove Cement Kilns in Chanute, Kansas at 50 & 57 (1995) (“SAIC Report”).

Indirect exposure pathways are coupled with profiles of hypothetical populations in an “exposure scenario.” The exposure scenarios of particular importance in this case are those of a hypothetical recreational fisher (who has indirect exposures to emitted substances through consumption of fish and vegetables, ingestion of water and soil, and dermal contact with water and soil) and a hypothetical resident child (who has indirect exposures through ingestion of soil and water, consumption of vegetables, and dermal contact with soil and water). SAIC Report at 35-36, 44, 48.

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The BIF rule is presumed to be protective of human health and
the environment by virtue of its status as a final regulation promulgated under the authority of RCRA section 3004(a). 42 U.S.C. § 6924(a) (EPA is charged with establishing standards “as may be necessary to protect human health and the environment”); see In re Chemical Waste Management, Inc., 2 E.A.D. 575, 580 (Adm’r 1988) (it is reasonable to presume that final RCRA regulations protect human health and the environment unless there have been material changes or other special circumstances since promulgation), aff’d sub nom. Alabama ex rel. Siegelman v. EPA, 911 F.2d 499 (11th Cir. 1990). Despite the presumption of protectiveness that accompanies the BIF rule standards, both RCRA and the BIF rule contemplate situations in which the permitting agency may impose permit conditions that go beyond the requirements and standards of the BIF rule. RCRA requires the permitting agency to include any terms and conditions necessary to protect human health and the environment in each permit for a hazardous waste treatment, storage, or disposal facility. RCRA § 3005(c)(3), 42 U.S.C. § 6925(c)(3). This statutory provision, known as RCRA “omnibus authority” or the “omnibus provision,” has been interpreted and applied as authorizing permit conditions that are more stringent than those specified by a substantive regulation such as the BIF rule. See 40 C.F.R. § 270.32(b) (section 270.32(b)(1) requires RCRA permits to contain such conditions as necessary to comply with specific statutory requirements and regulations; section 270.32(b)(2) sets forth the additional requirement that permits contain such terms and conditions as necessary to protect human health and the environment); In re Morton Int’l, Inc., 3 E.A.D. 857, 864 (Adm’r 1992) (“[t]he legislative history of § 3005(c)(3) shows an intent to authorize the Administrator to impose permit conditions beyond those mandated by the applicable regulations”) (emphasis in original); In re Amoco Oil Co., 4 E.A.D. 954, 971 n.23 (EAB 1993) (same). The preamble to the BIF rule recognizes that RCRA’s omnibus authority may be invoked to apply stricter emissions limits or additional permit conditions where necessary to ensure protection of human health and the environment. See 56 Fed. Reg. at 7145 (regarding use of omnibus authority in setting permit standards for particulate matter); id. at 7147 (regarding standards for destruction of toxic organic compounds); id. at 7173 (regarding metals standards). The preamble also notes the prerequisites that must be met in order to invoke RCRA’s omnibus authority. The permitting agency must specifically justify the need for additional or alternative conditions in the administrative record and must accept and respond to comment regarding the exercise of omnibus authority. Id. at 7173 n.56.

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Application of omnibus authority involves the exercise of discretion on the part of the Agency, and acts of discretion must be adequately explained and justified. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983) (“[w]e have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner”). The importance of providing proper support in the administrative record for an exercise of omnibus authority has also been emphasized by the Board. In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. 144, 162 (EAB 1995) (although the substantive standards for exercise of omnibus authority may be met, the administrative record must contain “a properly supported finding” to that effect); In re Amoco Oil Co., 4 E.A.D. 954, 970-71 (EAB 1993) (the Agency’s bare assertion that a permit condition is authorized by RCRA’s omnibus provision is insufficient; the Agency must “provide a properly supported finding that the * * * provisions are necessary to protect human health and the environment”); In re Sandoz Pharm. Corp., 4 E.A.D. 75, 80 (EAB 1992) (omnibus authority may not be invoked “unless the record contains a properly supported finding that an exercise of that authority is necessary to protect human health or the environment”). b. Documentation of the Ash Grove Risk Assessment The Region’s documentation of the Ash Grove risk assessment and the conclusions reached therefrom are found in several places in the administrative record. The Region’s Summary of Comments and Responses, EPA Part II Permit for the Ash Grove Cement Company Chanute, Kansas (Aug. 1996) (“Responsiveness Summary”) contains textual descriptions of the risk assessment calculations and conclusions. Science Applications International Corporation, A MultiPathway Risk Assessment for the Ash Grove Cement Kilns in Chanute, Kansas (1995) (“SAIC Report”) is the technical risk assessment report that contains actual calculations and tables of risk estimates. However, the SAIC Report does not contain all of the calculations discussed in the Responsiveness Summary.10 Technical documentation for other risk calculations described in the Responsiveness Summary was not

10

Despite the fact that the SAIC Report does not completely document the Region’s risk assessment effort, the Region refers to the SAIC Report as the “Risk Assessment” in its responses to the petitions for review. The Region also submitted copies of the SAIC Report to the Board with representations that the document was the “Risk Assessment.” See Response to Ash Grove Petition at 3 & Ex. 2; Response to Rollins Petition at 3 & Ex. 2. We have discerned, however, that the risk assessment exercise was broader than what is reflected in the SAIC Report and we therefore use the term “risk assessment” in this decision to refer to the entire risk assessment process evidenced in the materials provided for review.

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provided to us for review. We are thus faced with the descriptive passages from the Responsiveness Summary and the technical documentation as it appears in the SAIC Report as our principal source documents. The Responsiveness Summary states that the process of assessing potential risks associated with various levels of emissions from Ash Grove began as follows: “The risk assessment which EPA conducted of the Chanute facility evaluated potential health impacts, through mathematical calculations, assuming the kilns emitted the maximum amount of toxic metals currently allowable. Our conclusion was that these emissions were not acceptable.” Responsiveness Summary at 1415. The maximum metals emissions referenced in this statement are the allowable emissions under the BIF rule. The Region concluded that the allowable emissions under the BIF rule were not acceptable because those emissions levels yielded elevated risk estimates for indirect exposure pathways. The Responsiveness Summary makes this point more fully in a later discussion: EPA conducted risk calculations for mercury and thallium, using * * * the hourly feed rate limits for these two metals contained in the BIF regulations. These calculations, which are included in the administrative record, resulted in a hazard index due to ingestion of mercury in fish, of 6400, and a hazard index due to ingestion of thallium in fish of 33. In addition, at those mercury and thallium emission rate levels, hazard indices for soil ingestion by a resident child would be 460 and 34, respectively. EPA’s “benchmark” hazard index is 0.25.[11] Id. at 67 (emphasis added to indicate indirect exposure pathways). Based on the predicted hazard indices, the Region determined that the BIF rule limits on mercury and thallium “may not be protective of human health and the environment, and that more restrictive

• • • limits for mercury and thallium are therefore necessary to protect
      human health and the environment.” Id. at 67. Thus, the Region set
      11

A hazard index is a standard measure of risk for non-cancer health effects. Typically, the EPA considers a hazard index of 1.0 as an “acceptable” risk level. See Response to Ash Grove Petition at 13. Under the risk assessment guidance used in this case, however, EPA selected a more conservative (i.e., more protective) benchmark hazard index of 0.25. Draft Implementation Guidance for Conducting Indirect Exposure Analysis at RCRA Combustion Units at 15 (Apr. 1994); see also Responsiveness Summary at 67.

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alternative mercury and thallium limits in the draft permit that were
stricter than the limits allowable under the BIF rule. Notably, however,
the stricter limits in the draft permit still did not yield risk estimates
below EPA’s benchmark hazard index of 0.25. The draft permit limits
for mercury and thallium resulted in risk estimates as displayed in the
following table:

Exposure Scenario

Hazard Index Based on
Draft Permit Limits
Mercury

Thallium

Recreational Fisher
(consumption of fish)

49

0.29

Resident Child
(ingestion of soil)

3.6

0.3

Id. at 118. The Region acknowledged the effect of the risk estimates
derived from the draft permit limits: “[e]ven with the addition of the
[stricter limits], calculations of the hazard indices for mercury and thallium are still above EPA’s ‘benchmark’ level of 0.25.” Id. at 67. Despite the elevated risk estimates, the draft permit limit for mercury was retained in the final permit. The permit limit for thallium was actually increased fourfold in the final permit. The Region noted that the increased thallium limit yielded hazard indices greater than 1.0 for both fish consumption by a recreational fisher and ingestion of soil by a resident child. Id. at 118. Because the selected permit limits resulted in elevated risk estimates for indirect exposures to mercury and thallium, the Agency added permit conditions mandating Ash Grove to conduct environmental monitoring of fish and soil. Id. at 49, 119. The SAIC Report provides a different picture of the indirect exposure risks associated with Ash Grove emissions than the account described in the Responsiveness Summary. The numerical risk estimates in the SAIC Report are not based on either the maximum emissions permitted under the BIF rule or emissions associated with draft or final permit conditions. Instead, the SAIC Report presents risk estimates calculated from actual emissions data from Ash Grove’s trial burn. The risk estimates derived from the trial burn only indicate an elevated risk for mercury exposure through the fish consumption

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pathway for the recreational fisher.12 The risk estimates for thallium
(all exposure scenarios) and other mercury exposure scenarios
(including ingestion of soil by a resident child) all have hazard indices
less than EPA’s benchmark of 0.25. See SAIC Report Tables III.15
through III.26. There is no mention of the SAIC Report risk estimates
in the Responsiveness Summary or in the Region’s responses to the
petitions for review.
In sum, the administrative record on the Ash Grove risk assessment contains a few disconnects. Although the Responsiveness Summary contains careful explanations of the use of the risk assessment in the Region’s decisionmaking, there are some gaps regarding how the permit limits for mercury and thallium were selected and why the Region chose to include environmental monitoring conditions in the permit. The SAIC Report contains very different risk estimates from those discussed in the Responsiveness Summary. The Responsiveness Summary does not indicate if or how the risk estimates in the SAIC Report factored into the Region’s decisions on permit conditions. These jagged edges in the record become pertinent to our review of the challenges to the permit limits on mercury and thallium and the environmental monitoring conditions, discussed infra Section II.B.4.

2. The Region’s Authority to Conduct an Indirect
   Exposure Risk Assessment for Ash Grove
   Ash Grove, with support from CKRC, challenges the Region’s
   decision to conduct an indirect exposure risk assessment in this case.
   CKRC states that the performance of the risk assessment may even be
   illegal. CKRC Amicus Brief at 13. Ash Grove and CKRC oppose the
   Region’s risk assessment effort because the Region allegedly relied
   upon an Agency guidance document in determining the need to conduct the risk assessment. Ash Grove Petition for Review at 6; CKRC Amicus Brief at 10. They argue that because the impetus for the risk assessment was improper, the permit conditions derived from the risk assessment results, i.e., the environmental monitoring conditions, are invalid. Ash Grove and CKRC take issue with EPA’s Strategy for Hazardous Waste Minimization and Combustion (Nov. 1994)

12
The hazard index for a hypothetical recreational fisher’s exposure to mercury through consumption of fish as reported in the SAIC Report is 1.44. SAIC Report at 44. The SAIC Report further indicates that the recreational fisher’s hazard index for mercury when all indirect exposure pathways are added together is 1.52. Id. Notably, the SAIC Report risk estimates are lower than any of the mercury risk estimates discussed in the Responsiveness Summary.

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(“Combustion Strategy”), a published policy document that addresses
the use of combustion as a hazardous waste treatment technology.
One of the goals of the Combustion Strategy is to “ensure that permits
are issued at facilities in a manner that protects against unacceptable
risks to human health and the environment.” Combustion Strategy at

3. In describing how this particular goal could be realized, the
   Combustion Strategy adopts a “general policy that risk assessments,
   which include indirect exposure pathways, should be performed prior
   to final permit determinations for all hazardous waste combustion
   facilities.” Combustion Strategy at 23 (emphasis added). Because the
   Combustion Strategy is merely policy rather than a promulgated rule,
   Ash Grove and CKRC argue that the Region may not rely on the
   Combustion Strategy as a basis for its decision to conduct an indirect
   risk assessment. Ash Grove Petition for Review at 6; CKRC Amicus
   Brief at 13.
   In response to Ash Grove’s petition, the Region states that it did
   not rely on the Combustion Strategy in deciding to conduct the Ash
   Grove risk assessment, although it admits that its actions were consistent with the Strategy. Response to Ash Grove Petition at 11-12. Despite the Region’s claim to the contrary, the Responsiveness Summary makes clear that the Combustion Strategy was an important factor in the Region’s decision to conduct the risk assessment:
   [I]t is the EPA’s general policy to evaluate site-specific
   factors to determine whether to require an indirect risk
   assessment at a particular facility.
   *

*

*

*

*

*

*

This policy was most clearly announced as part
of Administrator Browner’s “Combustion Strategy” * * *.
It is EPA’s position that the Combustion Strategy itself
does not impose regulatory requirements, but is a policy statement expressing how the EPA plans to exercise its discretionary authorities under RCRA in the future. Specifically, the Combustion Strategy recommends that indirect exposure pathways be examined in order to assure that individual permits meet RCRA’s mandate to protect human health and the environment. Responsiveness Summary at 68. Thus, it appears from the Responsiveness Summary that the Combustion Strategy was indeed a principal reason for conducting the

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risk assessment. However, the Combustion Strategy’s status as Agency
policy does not invalidate either the risk assessment or the permit
decisions founded on the risk assessment. Contrary to Ash Grove and
CKRC’s insistence, policy and guidance have a legitimate role in the
permitting process. The Board has recognized that “the Agency’s proposed regulations and guidance documents do not have the force of law” but a Region may nevertheless draw upon such sources when writing an individual permit, provided that the Region “perform[s] a permit-specific analysis” for any particular application of the guidance. In re Environmental Waste Control, Inc., 5 E.A.D. 264, 273 (EAB 1994). Agency policy and guidance may be “followed if appropriate in the circumstances of the individual permit.” In re Allied-Signal, Inc. (Frankford Plant), 4 E.A.D. 748, 760 (EAB 1993).13 We thus reject Ash Grove and CKRC’s argument that application of the Combustion Strategy is always improper and that consequently, performance of the risk assessment is illegal per se. When relying on policy or guidance documents, the Region must justify the application of a particular policy or guidance on a case-bycase basis and must be prepared to address counterarguments raised by others. Allied-Signal, 4 E.A.D. at 760; In re Envirosafe Services of Idaho, Inc., 3 E.A.D. 165, 168 (Adm’r 1990). Environmental Waste Control and Allied-Signal addressed the propriety of permit terms and conditions that were taken directly from proposed regulations or guidance. In this case, the permit terms being challenged by Ash Grove (i.e., the environmental monitoring conditions) are not found in the Combustion Strategy, but result from the Region’s application of the policy therein. The aforementioned standards for application of policy and guidance apply whether a Region incorporates permit terms and conditions directly from guidance or uses a technique suggested by guidance to derive permit terms and conditions. Here, the Region identified site-specific factors that support the Combustion Strategy’s recommendation for an indirect exposure risk assessment. The Region states that it reviewed information on Ash Grove’s previous emissions tests and metals feed rates during the permit process, but did not find information regarding the effects of emissions “on the people and the environment in the Chanute area.” Response to Ash Grove Petition at 10. Due to the lack of data, the 13 One key feature of policy and guidance documents is that such documents leave room for discretion on the part of agency decisionmakers who are applying the guidance. Troy Corp. v. Browner, 120 F.3d 277, 287 (D.C. Cir. 1997) (discussing features of “general statements of policy” that render them exempt from notice and comment rulemaking under the Administrative Procedure Act, 5 U.S.C. § 553).

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Region decided to conduct a multi-pathway (indirect exposure) risk
assessment.14 Id.
We thus reject Ash Grove and CKRC’s challenge to the environmental monitoring conditions in Ash Grove’s permit to the extent that the challenge is based on the Region’s application of the Combustion Strategy.15 The Agency’s permitting process should be able to make use of any and all appropriate analytical tools, whether such tools are required by rule or suggested by policy. To hold that a Region must abstain from a particular type of inquiry simply because a procedure is not mandated by rule would attack the core of the permitting process. The Board’s standard for application of policy and guidance in the permitting process preserves the necessary flexibility for the permitting agency while ensuring that the views of the permittee and others are carefully and adequately addressed.

3. Challenges to the Risk Assessment Methodology
   Ash Grove and Rollins et al. identify aspects of the risk assessment methodology that they believe are erroneous or improper. All petitioners contend that the results of the risk assessment are unreliable.16 See Ash Grove Petition for Review at 7; Rollins Petition for Review at 7. Risk assessment is a multi-disciplinary and technical exercise, and consequently, most of the petitioners’ criticisms are technical in nature. The Board traditionally assigns a heavy burden to persons seeking review of issues that are quintessentially technical. In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. 66, 80 (EAB 1995). The significance of that burden is manifested by the Board’s inclination to defer to a Region on technical issues. “[A]bsent compelling circumstances, the Board will defer to a Region’s determination of issues that depend heavily upon the Region’s technical expertise and experience.” In re Envotech, L.P., 6 E.A.D. 260, 284 (EAB 1996); see also In re General Elec. Co., 4 E.A.D. 358, 375 (EAB 1992). 14 Even in the absence of the Combustion Strategy, the Region’s observations in this case might well have resulted in a decision to conduct an indirect exposure risk assessment in light of the Region’s obligation to reach a permit decision that adequately protects human health and the environment. 15 We separately address Ash Grove’s criticisms of: i) the risk assessment methodology, and ii) the Region’s justification of its decision to include environmental monitoring conditions in the permit, infra Sections II.B.3.a. and II.B.4.b., respectively. 16 The petitioners’ complaints about the unreliability of the risk assessment methodology can be addressed apart from the petitioners’ claims that the risk assessment results (even if correct) do not justify the Region’s decisions on permit conditions. A discussion of specific permit conditions and the Region’s justification of such conditions can be found infra Section II.B.4.

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The type of risk assessment at issue in this case has been described
as “state of the science” work and “at the edge of our scientific knowledge.”17 The Supreme Court of the United States has suggested that an assignment of burden, such as is reflected by the Board’s standard, is appropriate when considering cutting edge science in the regulatory context. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 553 (1978), the Court required participants in administrative proceedings who wished to promote “exploration of uncharted territory” to not only identify mistakes on the part of an agency, but also to demonstrate why a particular mistake was significant to the results of the agency’s action. The Board has applied this rule from Vermont Yankee in denying review of issues raised in permit appeals. See In re Broward County, 6 E.A.D. 535, 552-54 (EAB 1996) (review denied on petitioner’s unsubstantiated and contrary conclusion regarding test species for toxicity testing); In re Spokane Regional Waste-to-Energy, 2 E.A.D. 809, 817 (Adm’r 1989) (review denied on challenge to Agency’s rejection of air pollution control methods that are “new and evolving” and for which there is a “paucity of knowledge”). In part, the present appeals raise general allegations of error in the conduct of the Ash Grove risk assessment. General allegations of error, without a more specific showing regarding the impact of the alleged error, are not sufficient to obtain Board review. In addition, many of the risk assessment methodology issues in these appeals were raised and addressed during the public comment period on the draft permit. To obtain Board review of issues raised during the notice and comment period, “a petitioner must demonstrate why the Region’s response * * * is clearly erroneous or otherwise warrants review.” In re LCP Chemicals-New York, 4 E.A.D. 661, 664 (EAB 1993); see also In re EcoEléctrica, L.P., 7 E.A.D. 1, 61 (EAB 1997). “[A] petitioner may not simply reiterate its previous objections to the draft permit.” In re Austin Powder Co., RCRA Appeal No. 95-9, 6 E.A.D. 713, 721 (EAB 1997). Petitioners must provide compelling arguments as to why the Region’s technical judgments or its previous explanations of those judgments are clearly erroneous or worthy of discretionary review. a. Challenges to the Risk Assessment Methodology by Ash Grove Ash Grove claims that errors in the multi-pathway risk assessment methodology identified by the EPA’s Science Advisory Board and 17

U.S. EPA Science Advisory Board, Review of Draft Addendum to the Methodology for Assessing Health Risks Associated with Indirect Exposure to Combustor Emissions at 8 (July 1994).

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other experts make the results of the Ash Grove risk assessment unreliable. Ash Grove Petition for Review at 8-11.18 Therefore, Ash Grove argues, the risk assessment results cannot serve as justification for permit conditions. Ash Grove ultimately states that the risk assessment methodology yielded estimates of offsite impacts (i.e., risks) that are too high. Id. at 13. Ash Grove claims that an error-free risk assessment would have predicted exposures “well below levels of regulatory concern” and would not have induced the Region to include environmental monitoring conditions in the permit. Id. at 7. Most of Ash Grove’s complaints about risk assessment methodology are not linked to particular elements of the risk assessment as conducted by the Region in this case. Instead, Ash Grove quotes or references comments from two expert reviews of the methodology for indirect exposure risk assessments generally. One expert review was prepared by EPA’s Science Advisory Board, Review of Draft Addendum to the Methodology for Assessing Health Risks Associated with Indirect Exposure to Combustor Emissions (July 1994) (“SAB Report”). Another review was conducted by a panel of scientists who looked at the methodology as it was proposed for use in an upcoming rule on hazardous waste combustion. Review and Comments of the EPA’s Peer Review Panel on the Risk Assessment in Support of a Proposed Rule for Technical Standards for Emissions from Combustion Units Burning Hazardous Wastes (Aug. 1996) (“Peer Review Report”). Both the SAB Report and the Peer Review Report were prepared outside of the context of the Ash Grove permitting process. The experts’ comments in those reports were not specifically intended to apply to the Ash Grove risk assessment. Ash Grove reiterates comments from the SAB Report and the Peer Review Report over nearly five pages of its petition for review, but it does not explain how those comments apply to this permitting process. At a minimum, we expect Ash Grove to present some argument linking the abstract observations of the expert panels to the specifics of the Region’s risk assessment in this case. Ash Grove has largely failed to provide such a connection. Out of Ash Grove’s mostly irrelevant presentation of quotations, we discern two issues regarding the risk assessment methodology that

18
Ash Grove also claims that the uncertainties and data limitations identified in the SAIC Report are evidence of the inherent unreliability of the risk assessment. Ash Grove Petition for Review at 7-8. Uncertainties are an unavoidable component of risk assessments. Risk assessments yield risk estimates, and some level of uncertainty is a component of all estimations. Identification and explanation of uncertainties is an expected and essential component of valid risk assessment reports. The fact that the SAIC Report contains a section identifying uncertainties is not an indication of error in the risk assessment.

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arguably have been raised with sufficient linkage to this permitting
process. First, Ash Grove claims that the Region failed to make use of
site-specific data in performing the risk assessment. Ash Grove Petition
for Review at 7, 13. Unfortunately, Ash Grove does not identify exactly what site-specific information it is referring to. In its discussion of this issue, Ash Grove mentions “known, site-specific information,” and “Region VII’s site-specific data.” Id. at 7. From these very general phrases, we can only presume that the site-specific information that Ash Grove has in mind is the same site-specific information discussed by the Region. The Region’s information consists of: i) identification of realistic exposure pathways in the Chanute area, and ii) water quality and fish tissue data from Sante Fe Lake in Chanute. Responsiveness Summary at 25; SAIC Report at 105; Response to Ash Grove Petition at 14. In reviewing the Region’s treatment of this site-specific information, it appears that site-specific parameters were indeed incorporated into the Ash Grove risk assessment. First, site-specific information was used in selecting appropriate exposure pathways and exposure scenarios. Responsiveness Summary at 25. For example, the Region evaluated risks associated with a recreational fisher rather than a subsistence fisher after determining, through consultation with the Kansas Department of Wildlife and Game and the Chanute Chamber of Commerce, that the existence of subsistence fishers in the Chanute area is unlikely. Responsiveness Summary at 27. Second, the Region considered actual data on mercury levels in local fish in its evaluation of the risk assessment results. Responsiveness Summary at 118. Ash Grove’s objection regarding site-specific information does not explain why the Region’s previous responses on this issue are inadequate. As such, Ash Grove has not sustained its burden of showing the existence of clear error or a basis for discretionary review. The second issue that is arguably raised with sufficient linkage to this permitting process involves the estimation of health risks associated with mercury emissions. The inference from Ash Grove’s selection of excerpts from the Peer Review Report is that some scientists question the existence and magnitude of adverse health effects from certain types of mercury exposure. See Ash Grove Petition for Review at 11-13. However, commenters on the draft permit, including Ash Grove, apparently did not question the existence of adverse health effects associated with mercury. This issue is raised for the first time in the context of Ash Grove’s appeal. Regulations governing the permit appeals process require that issues raised on appeal also must have been raised during the public comment period. “The petition [for review] shall include * * * a demonstration that any issues being raised

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were raised during the public comment period * * *.” 40 C.F.R.
§ 124.19(a). Therefore, we decline to grant review due to a failure to
preserve this issue for review.
In summary, Ash Grove’s objections to the risk assessment
methodology do not warrant additional review. In large part, Ash
Grove’s Petition for Review lacks an explanation of how the experts’
abstract comments on risk assessment methodology are linked to the
methodology as specifically applied in this case. With regard to the
use of site-specific data and information, Ash Grove fails to explain
why the Region’s prior explanations of how such information was
actually used are inadequate. Finally, Ash Grove’s challenge regarding
mercury health effects was not preserved for review.
b. Challenges to the Risk Assessment Methodology
by Rollins et al.
The methodology used for the Ash Grove risk assessment was
derived from two related EPA guidance documents that set forth the
procedures for conducting the indirect exposure risk assessment recommended by the Combustion Strategy. Draft Implementation Guidance for Conducting Indirect Exposure Analysis at RCRA Combustion Units (Apr. 1994) (“Implementation Guidance”); Draft Guidance for Performing Screening Level Risk Analyses at Combustion Facilities Burning Hazardous Wastes (Apr. 1994) (“Screening Guidance”). These guidance documents were designed for a specialized purpose; they guide risk assessments of chronic (long-term) human exposure to emissions from a hazardous waste combustion facility. Because the risk assessment methodology derived from these documents focuses on emissions, it is not necessarily the appropriate tool to use in addressing, for example, accidental releases of pollutants or certain types of land disposal techniques. The methodology in the guidance documents also reflects limitations of risk assessment science such as information gaps in chemistry or toxicology for certain substances. The methodology is nonetheless useful, because it addresses the types of risks from hazardous waste combustion facilities that EPA believes are most important (i.e., those associated with emissions) and includes a broad range of chemicals that may be present in emissions. As a general proposition, risks that merit consideration during the RCRA permitting process must be addressed by a permitting authority. However, a permitting authority has multiple tools available to it to analyze and address various types of risks. The risk assessment methodology set forth in the Implementation Guidance and Screening Guidance is appropriate for use in understanding certain, but not all, types of potential risks.

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With this understanding of the purposes and limitations of the
risk assessment methodology as background, we analyze the criticisms by Rollins et al. as to several aspects of the risk assessment methodology. Rollins et al. primarily focus on factors and considerations that were not incorporated into the risk calculations. Rollins et al. argue that the following defects in methodology yield underestimates of risk or represent potential hazards to human health or the environment that were not adequately addressed: (1) Performance of a “hybrid” risk assessment. Rollins Petition for Review at 7. (2) Failure to perform risk calculations for certain chemicals in portions of the risk assessment. Rollins Petition for Review at 8. (3) Failure to evaluate risks from cement kiln dust. Rollins Petition for Review at 9. (4) Failure to evaluate risks posed by accidents or transportation of wastes to the Ash Grove facility. Rollins Petition for Review at 10. (5) Failure to evaluate cumulative effects of Ash Grove emissions. Rollins Petition for Review at 12. (6) Failure to evaluate risks from upset conditions. Rollins Petition for Review at 13. (7) Failure to evaluate risks to Native American populations in northern Oklahoma. Rollins Petition for Review at 20-21. As will be demonstrated in the following discussion, many of these arguments fail because we are not persuaded that the risk assessment is the only means available to the Region to address these issues. In most cases, the issues of underlying concern have been adequately addressed by the Region outside of the risk assessment. For other issues, Rollins et al. have not persuaded us that the Region’s explanations of its technical decisions regarding the risk assessment methodology are clearly erroneous or otherwise warrant review. (1) “Hybrid” Risk Assessment Methodology Rollins et al. initially assert that the Region deviated from the methodology set forth in the Implementation Guidance and Screening Guidance because the Region’s own description of the risk assessment process states that a “hybrid” approach was followed. Rollins Petition for Review at 7; see Responsiveness Summary at 25. The Region claims that its approach is not a deviation from the guidance documents. Response to Rollins Petition at 12-13. The Ash Grove risk assessment is a “hybrid” risk assessment in that it supplements a pure screening analysis with site-specific information on exposure pathways and populations. Responsiveness Summary at 25; Response to Rollins

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Petition at 14. The consequence of such an approach is that certain
default assumptions in the guidance may be modified to better reflect
site-specific information. Both the Implementation Guidance and the
Screening Guidance endorse this approach. The guidance documents
specifically suggest that site-specific information be incorporated into
the published methodology where such information is available.
Implementation Guidance at 11; Screening Guidance at C-1-1. Such
modifications do not amount to impermissible deviations from the
prescribed methodology. Rollins et al. clearly do not care for the
Region’s “hybrid” approach but they do not demonstrate why the
Region’s explanation of the “hybrid” procedure is either clearly erroneous or should be subject to discretionary review. (2) Exclusion of Chemicals from the Risk Assessment Rollins et al. take issue with the treatment of certain chemicals in the risk assessment methodology. Rollins et al. note that certain chemicals were not evaluated in all exposure pathways and they claim that the exclusion of those chemicals from certain risk equations is a violation of Agency policy as reflected in the Screening Guidance. Rollins Petition for Review at 8. We disagree with Rollins et al. for two reasons. First, the characterization of this issue as a “violation of policy” is inaccurate. The Screening Guidance itself does not provide risk equations for all chemicals in all exposure pathways. See Screening Guidance at C-4-4 through C-4-7 (charts illustrating which equations can be used for particular chemicals). The record demonstrates that the Region performed risk calculations for the so-called “excluded” chemicals exactly as recommended by the Screening Guidance. See SAIC Report Tables III.15 through III.22. Although certain chemicals were evaluated in fewer than all of the exposure pathways, those chemicals were not “excluded” from the standpoint of the Screening Guidance. Thus, there was no inconsistency with the guidance, much less a violation of policy, with regard to the chemicals mentioned by Rollins et al. Second, Rollins et al. have not made a convincing showing as to why the alleged exclusions should be of concern. Although Rollins et al. may be saying in effect that the Screening Guidance methodology is inadequate, they do not specifically explain how the methodology might be modified or what the effect of the exclusions might be on the risk assessment results. More importantly, Rollins et al. do not suggest what impact the exclusions might have on the permit terms and conditions. Thus, Rollins et al. do not persuade us that the Region’s treatment of these chemicals was either clearly erroneous or involved an important policy matter worthy of review.

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(3) Risks Associated with Exposure to
Cement Kiln Dust
In an argument related to the previous one regarding exclusion
of certain chemicals from various risk scenarios, Rollins et al. note that
the Ash Grove risk assessment did not contain an evaluation of risks
from cement kiln dust (“CKD”). Rollins Petition for Review at 9. CKD
is a byproduct of the combustion process that is often disposed of in
piles, quarries, or landfills. See Regulatory Determination on Cement
Kiln Dust, 60 Fed. Reg. 7366, 7368 (Feb. 7, 1995). The petitioners’
concern about CKD is particularly focused on CKD lead levels. Rollins
Petition for Review at 9. It is true that the Region did not provide a
quantitative estimate of risk associated with CKD or the lead therein.
However, we are not convinced that it is necessary to generate a
numerical risk estimate for CKD as long as CKD is adequately
addressed by other means.
The Region addressed the issue of risks associated with CKD lead
levels during its review of the draft permit. The Region noted that lead
levels in CKD generated during the trial burn were abnormally high
in comparison to lead levels in CKD from Ash Grove’s regular operations. The lead levels in CKD generated from Ash Grove’s regular operations were lower than EPA’s soil screening level for lead. Responsiveness Summary at 59. The Region also described CKD control measures found in a solid waste permit issued to Ash Grove by KDHE19 and EPA’s general policy on CKD.20 See Responsiveness Summary at 55-58. Thus, the Region addressed potential CKD hazards and control of those hazards even though it did not perform risk calculations for CKD. Given that the Region specifically considered expected CKD lead levels and was assured of CKD controls through the state solid waste permit, we are not persuaded that a failure to

19
The KDHE permit is an Industrial Solid Waste (“ISW”) Landfill permit that is separate from the RCRA Part I permit issued by KDHE and the RCRA Part II permit under consideration in this case. The KDHE ISW permit requires control of fugitive dust, containment of stormwater that comes into contact with CKD, and control of leachate from Ash Grove’s landfill used for CKD disposal. Responsiveness Summary at 55; Response to Rollins Petition at 33-34. 20 EPA’s regulatory determination on CKD concluded that full RCRA Subtitle C regulation of CKD is not feasible. 60 Fed. Reg. at 7376. The Agency is currently developing a tailored regulatory program for CKD under RCRA and Clean Air Act authorities. See 62 Fed. Reg. 22,296, 22,355 (Apr. 25, 1997) (EPA’s semiannual regulatory agenda).

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generate a numerical risk estimate for exposures to CKD amounts to
error or an important policy issue worthy of review.21
(4) Accident and Transportation Risks
Rollins et al. claim that the risk assessment methodology is inadequate because it yields risk estimates that do not take into account risks associated with accidents and hazardous waste transportation. Rollins Petition for Review at 10. Rollins et al. request a “site-specific quantitative” analysis of accident and transportation risks for the Ash Grove facility. Id. at 11. Again, we note that the risk assessment methodology, as outlined in the Implementation Guidance and the Screening Guidance, is designed to provide quantitative risk estimates for exposures to stack emissions. This particular methodology is not necessarily appropriate for use in estimating risk from other types of sources such as accidental releases. The Region nonetheless addressed accident and transportation risks.22 It noted that accident prevention associated with hazardous waste storage and handling at the Chanute facility is covered by Part I of Ash Grove’s permit, issued by KDHE. See Response to Rollins Petition at 35. The Region also reviewed Department of Transportation safety standards and statistics on hazardous waste transportation. Responsiveness Summary at 64. Because the Region has adequately addressed the actual issues of concern, we are not persuaded that the lack of a quantitative risk analysis warrants review. (5) Cumulative Risks/Cumulative Effects Rollins et al. set forth an ambiguous argument regarding the treatment of cumulative risk in the Ash Grove risk assessment. Rollins et al. argue that “a cumulative effects analysis” was required for pur-

21

We also decline to review the claims of Rollins et al. alleging that the Region failed to include a corrective action schedule for CKD. Rollins Petition for Review at 26. The corrective action section of Ash Grove’s RCRA permit addresses this issue on its face. Solid waste management units associated with CKD disposal are specifically listed in the corrective action section of the permit. Ash Grove Permit Part II ¶ C.6.f. This section also contains provisions on timing and scheduling for corrective action. 22 The petition by Rollins et al. suggests that the Region’s only response to comments regarding accident and transportation risks at Ash Grove was to reference a study regarding accident and transportation risks for the Waste Technologies Industries (“WTI”) incinerator in East Liverpool, Ohio. Rollins Petition for Review at 10-11. We do not interpret the Region’s reference to the WTI analysis in the Responsiveness Summary as an endorsement of that analysis for purposes of the Ash Grove permit. Therefore, the claims of Rollins et al. that the Region relied upon the WTI analysis are misplaced.

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poses of the permitting process but not performed. Rollins Petition for
Review at 12. Rollins et al. do not specify what they mean by a “cumulative effects analysis.” The context of their argument, and their use of the terms “risks” and “effects” in an interchangeable fashion elsewhere in their petition, however, suggest that “cumulative effects analysis” is something akin to an assessment of cumulative risk. The term “cumulative risks” can take on a variety of meanings and should be specifically defined. See U.S. EPA, Science Policy Council, Guidance on Cumulative Risk Assessment, Part I - Planning and Scoping at 7 (June 1997) (“Cumulative Risk Assessment Guidance”). The very nature of the Ash Grove risk assessment reflects the values and approach described in the recent Cumulative Risk Assessment Guidance. The Ash Grove risk assessment was a multiple pathway, multiple chemical, multiple population assessment. These features are some of the recommended characteristics of risk assessments mentioned in the Cumulative Risk Assessment Guidance. Cumulative risks and effects were specifically addressed in the Ash Grove permitting process as follows. First, the potential for exposure to emissions from sources other than Ash Grove was considered through air dispersion modeling. The air model considered the contributions from other hazardous waste burning facilities in southeast Kansas to regional ambient air concentrations. The analysis showed that the Ash Grove facility contributes 93%-97% of the emissions in the Chanute area. SAIC Report app. C at 4-28, 4-29; Responsiveness Summary at 17-18. Therefore, contributions of risk from other sources were considered insignificant and were not quantified in the risk assessment exercise. Response to Rollins Petition at 36. Cumulative risk was also taken into account in the risk assessment by considering additivity of effects from multiple chemicals in Ash Grove’s emissions. SAIC Report at 98. Rollins et al. are not clear about what other type of “cumulative effects analysis” is lacking from the Ash Grove permitting process. In light of the ambiguity in the presentation of this issue by Rollins et al. and the evidence in the record of the Region’s actual consideration of cumulative risks and effects, we find neither clear error nor a matter worthy of discretionary review. (6) Upset Conditions Rollins et al. criticize the Ash Grove risk assessment because it does not take into account emissions from upset conditions in the kilns. Rollins Petition for Review at 13. However, the Region specifically included permit conditions that address the underlying potential

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for upset conditions. The potential for upset conditions in the kiln is
controlled through use of an automatic waste cut-off mechanism that
activates when any one of several operating conditions are not within
permit limits. Ash Grove Permit Part II ¶¶ E.7.h.(11), E.7.i.(11);
Response to Rollins Petition at 36-37 n.33. We decline to grant review
of this issue.
(7) Environmental Justice
The final criticism of Rollins et al. with regard to the risk assessment methodology is a claim that the federal government policy on environmental justice was violated by the Region’s failure to use the risk assessment to evaluate risks to Native American populations in northern Oklahoma. Rollins Petition for Review at 20-21. The federal environmental justice mandate, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations, Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 16, 1994) (“Executive Order”), requires federal agencies to identify and address “disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority populations and low-income populations * * *.” Id. § 1-101. The Executive Order further requires each federal agency to develop an environmental justice strategy in order to carry out the directives of the Executive Order. Id. § 1-103. See, e.g., The EPA’s Environmental Justice Strategy (Apr. 1995). Neither the Executive Order nor EPA’s strategy specifically requires that quantitative risk assessment, as opposed to other means, be used to identify the potential for disproportionate impacts on minority populations. Thus, despite the characterization by Rollins et al., the failure to perform such calculations is not a “violation” or even a deviation from federal environmental justice policy. In this case, the Region responded to comments regarding environmental justice and the potential for disproportionate impacts upon Native American populations in Oklahoma during the comment period on the draft permit. The Region noted that the principal areas impacted by Ash Grove emissions (via any exposure pathway) are in the Chanute, Kansas area within zero to five miles of the Ash Grove facility. Responsiveness Summary at 23. Demographic data indicate very low percentages of minorities in Neosho County, where Ash Grove is located, and in surrounding Kansas counties. Average per capita income in Neosho County is similar to that of surrounding counties. The Region thus concluded that there was no evidence of disproportionate impacts on low-income or minority populations from Ash

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Grove operations. Id. at 22. The Region recognized that the percentage
of minorities in the population is higher in areas of northern Oklahoma,
and the average per capita income there is lower than in the Kansas
counties, but given the distance from Ash Grove (approximately 45
miles away), the Region concluded that Ash Grove emissions would not
“be a significant contributor to environmental problems in Northern
Oklahoma.” Id. at 23.
In light of the Region’s conclusion that the minority and/or lowincome populations identified are outside the area principally impacted by Ash Grove emissions, it was not unreasonable to choose not to generate a quantitative risk estimate applicable to those populations. Moreover, the unsubstantiated assertions of Rollins et al. regarding possible exposures of minority populations are not compelling. Rollins et al. claim that “the northern Oklahoma area is populated by a significant number of Native Americans who may well consume enough fish to fit EPA’s definition of subsistence fisher,” and thus, the exposures of a subsistence fisher should have been quantified in the risk assessment. Rollins Petition for Review at 21. Regardless of whether the statement regarding the number of subsistence fishermen among Native Americans in northern Oklahoma is true or not, it does not affect the Region’s conclusion that impacts from Ash Grove are not likely to be significant in northern Oklahoma. The allegations of Rollins et al. do not persuade us that generation of a quantitative risk estimate as requested might disclose any disproportionate impacts as to minority or low-income populations. See In re EcoEléctrica, L.P., 7 E.A.D. 56, 69 (EAB 1997) (review denied with regard to environmental justice issues where petitioners did not suggest how an additional analysis might “disclose the kind of disproportionate impact that the environmental justice Executive Order seeks to address”). Therefore, we decline to grant review of this issue. In summary, although Rollins et al. enumerate specific “defects” in the risk assessment methodology for Ash Grove, none of the identified issues warrant review.

4. Challenges to Particular Permit Conditions
   In addition to the objections to the risk assessment process discussed above, the petitioners also challenge certain conditions that were incorporated into the permit because of the risk assessment results. Rollins et al. appeal the permit limits for mercury and thallium. Ash Grove appeals permit conditions requiring it to conduct environmental monitoring of the same substances. These appeals, and the Region’s responses to them, interrelate. In both cases, the Region uses

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RCRA’s omnibus authority to justify the challenged permit conditions.
As will be seen, however, the Region’s stated rationales in the record
presently before us are insufficient to support the permit limits on
mercury and thallium and the environmental monitoring requirements
for these substances.
a. Appeal of Rollins et al. Regarding Mercury
and Thallium Permit Limits
Rollins et al. directly challenge the final permit limits on mercury
and thallium. They claim that the permit limits are inadequate to protect human health and the environment. Rollins Petition for Review at

18. Rollins et al. also object to what they view as the use of environmental monitoring requirements in lieu of strict limits on mercury and
    thallium emissions. Id. at 16. The Region claims that the permit provisions pertaining to metals reflect an appropriate exercise of RCRA omnibus authority. Response to Rollins Petition at 22. The Ash Grove permit controls mercury, thallium, and other metals in the cement plant’s emissions by limiting the amount of each metal in the cement plant’s hazardous waste feed. These limits are called “feed rates.” See Ash Grove Permit Part II ¶ E.6. The permit does not contain direct emissions limits on mercury or thallium, but by controlling feed rates, the permit indirectly limits metals emissions. Annual average feed rates for mercury and thallium are specified in ¶ E.6.b of Ash Grove’s permit. The annual average feed rates are purportedly more stringent than the feed rates required by the BIF rule. Responsiveness Summary at 90. Thus, the feed rates in the permit must satisfy the standards for an exercise of RCRA’s omnibus authority. The omnibus provision imposes an affirmative obligation on the permitting authority to ensure adequate protection of human health and the environment through the permit terms and conditions that it selects. In re Ecolotec, Inc., 2 E.A.D. 691 (Adm’r 1988). As we review the mercury and thallium permit limits here, we analyze whether the administrative record supports the conclusion that the feed rates, either alone or in combination with other permit terms and conditions, provide adequate protection of human health and the environment. The record indicates that the feed rate limits for mercury and thallium in the final permit were derived in the following manner. First, in light of “site-specific circumstances of Ash Grove’s operations,” the Region determined that the feed rate limits from the BIF rule alone would not be protective of human health and the environment. Responsiveness Summary at 67. The Region reached this conclusion

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by performing risk calculations on Ash Grove emissions associated
with BIF rule feed rate limits and observing that resulting risk estimates for certain indirect exposure pathways exceeded the 0.25 benchmark hazard index selected by the Region. Id. Based on its findings at this stage of the process, the Region concluded that “more restrictive feed rate limits for mercury and thallium are therefore necessary to protect human health and the environment.” Id. “[A]dditional feed rate controls on metals, beyond those specified in the regulations, are justified.” Id. at 115. These statements, coupled with the Region’s findings in support, are the type of evidence in the administrative record that justifies an exercise of omnibus authority. However, it is not enough to simply recognize when an exercise of omnibus authority is appropriate. The Region must also exercise that authority in such a way that human health and the environment are adequately protected. “The omnibus provision provides not only the authority but the obligation, to ensure that every RCRA permit adequately protects human health and the environment * * *.” Ecolotec, 2 E.A.D. at 695 (emphasis in original). The “more restrictive feed rates” developed by the Region are the annual average feed rates for mercury and thallium; these rates are the subject of the challenge by Rollins et al. It appears from the record that the annual average feed rates were calculated from the metals content of Ash Grove’s past hazardous waste stream. See Responsiveness Summary at 67 (“annual average feed rate limits for mercury and thallium [were] based * * * in part on Ash Grove’s past operations with respect to metal content in the hazardous waste burned by Ash Grove”). The Region proposed those feed rates as limits in the draft permit. The Region also performed risk calculations on the emissions associated with the draft permit feed rates and compared the results to the benchmark hazard index. The Region noted: Even with the addition of the annual average feed rate limits, calculations of the hazard indices for mercury and thallium are still above EPA’s “benchmark” level of 0.25. Id. at 67.23 Notwithstanding these results, the Region did not lower the proposed feed rates further24 or explain why further reductions were 23

The hazard indices calculated from the draft permit limits were:

• A recreational fisher’s exposure to mercury through
consumption of fish — hazard index = 49
Continued

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unnecessary. Instead, the Region included environmental monitoring
conditions in the permit, asserting in general terms that such conditions are “necessary to ensure the continued protection of human health and the environment in the Chanute area.” Responsiveness Summary at 67-68. This reference to the environmental monitoring conditions, however, does not explain how the permit limits for mercury and thallium are sufficiently protective, either alone or in combination with the monitoring conditions. For instance, it is not obvious to us how the requirement for environmental monitoring either limits the quantity of mercury and thallium emitted from the facility or mitigates the effects of emissions. We acknowledge that the selected mercury and thallium permit limits are more restrictive than the BIF rule limits, but simply being more restrictive does not establish that the permit limits are adequately protective. The record must demonstrate that the selected permit limits, either alone or in combination with other controls and conditions, adequately protect human health and the environment. The “administrative record must reflect the ‘considered judgment’ necessary to support the Region’s permit determination.” In re Austin Powder Co., 6 E.A.D. 713, 720 (EAB 1997) (citing In re GSX Services of South Carolina, Inc., 4 E.A.D. 451, 454 (EAB 1992)). Specifically, the Region “must articulate with reasonable clarity the reasons for [its] conclusions and the significance of the crucial facts in reaching those conclusions.” In re Carolina Power & Light Co., 1 E.A.D. 448, 451 (Act’g Adm’r 1978) (citation omitted). The administrative record regarding the basis for the Region’s selection of permit limits for mercury and thallium is not clear and therefore does not appear to reflect considered judgment. The record indicates that the Region chose a method to test the protectiveness of feed rate limits. That method compared the risk assessment results to a benchmark hazard index. We note that both the method of assessing protectiveness (i.e., comparison of risk estimates to a benchmark) and the particular benchmark used in this case (i.e., hazard index of 0.25) are not mandated by RCRA or its regulations. We are respectful of the Region’s choice

• A child’s exposure to mercury through ingestion of soil
— hazard index = 3.6
• A recreational fisher’s exposure to thallium through
consumption of fish — hazard index = 0.29
• A child’s exposure to thallium through ingestion of soil
— hazard index = 0.3
Responsiveness Summary at 118.
24

In fact, in the case of thallium, the Region raised the annual average feed rate in the final

permit.

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of tools to guide its permitting decisions under the omnibus provision,
but the Region’s ultimate decisions must then follow logically from its
chosen method. If the permitting decisions cannot be justified by the
method chosen, the Region must either supply an alternative justification or modify the selected permit terms and conditions. In this case, the Region’s method of choice was the indirect exposure risk assessment described previously in this decision. When viewed through the prism of this risk assessment, the selected permit limits for mercury and thallium, either alone or in combination with the monitoring conditions, do not satisfy the Region’s test for protectiveness. The Region has not provided an alternative explanation of how these limits satisfy the omnibus provision. Perhaps the Region has reasons for believing that the feed rates for mercury and thallium in the final permit provide adequate protection of human health and the environment, but those reasons are not clearly explained in the record.25 Therefore, we remand the mercury and thallium permit limits (Ash Grove Permit Part II ¶ E.6.b.). On remand, the Region must provide a rational explanation as to why the limits as written (either alone or in combination with other permit conditions) adequately protect human health and the environment. If such an explanation cannot be provided for the limits as written, the Region must: 1) revise the limits so that they adequately protect human health and the environment, and 2) provide a sufficient explanation of the protectiveness of the revised limits. The Region should supplement the record as necessary during the remand process. See In re Broward County,

25
The Region’s response to Ash Grove’s petition suggests one possibility as to why the Region might believe that the feed rate limits in the permit are adequately protective. It appears that the Region does not have full confidence in the results of the risk assessment. The Region states, “due to the very conservative assumptions used in the Risk Assessment, the potential risks estimated as a result of mercury emissions are likely overstated.” Response to Ash Grove Petition at 4. This justification does not appear to be included in the administrative record before us. The record does contain some discussion of the uncertainties regarding mercury risks, see SAIC Report at 106, but it is not clear that the uncertainties err on the side of being overprotective. If the Region believes that the risk estimates for mercury and thallium are too high, it should provide a cogent explanation of the reasons for that conclusion on the record.

There are also some inferences of possible alternative justifications that can be drawn from the somewhat jumbled presentation of the risk assessment results in the Responsiveness Summary and the SAIC Report, as described supra Section II.B.1.b. The risk assessment results on thallium found in the SAIC Report do not exceed the benchmark hazard index and the results on mercury in the SAIC Report indicate a far smaller risk exceedance than the corresponding results in the Responsiveness Summary. We cannot tell if the lower estimates of risk reported in the SAIC Report influenced the Region’s decisionmaking when setting feed rate limits for mercury and thallium. Regardless, mere inferences in the record do not satisfy the requirement that exercises of omnibus authority be properly explained and supported.

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Florida, 4 E.A.D. 705, 721 (EAB 1993) (ordering remand and supplementation of the record in support of certain permit conditions). The Region must also reopen the record for public comment following its decision to either revise or retain the existing limits. b. Ash Grove’s Appeal of the Environmental Monitoring Conditions The permit conditions on environmental monitoring referenced in the previous section are the subject of Ash Grove’s appeal. The conditions require monitoring of: i) mercury concentrations in fish and water in two local lakes, and ii) mercury and thallium concentrations in soil in the vicinity of its plant. Ash Grove asserts that the monitoring conditions are not required by the BIF rule nor have they been justified as necessary for protection of human health and the environment. Ash Grove Petition for Review at 3. The fish and water monitoring for mercury requires Ash Grove to collect fish tissue and water samples on a periodic basis from two lakes located approximately three kilometers from the cement plant. The Region states that the fish and water monitoring is to be conducted at a minimum on an annual basis. Responsiveness Summary at

51. The stated purpose of the monitoring program is to establish
    “baseline” concentrations of mercury in fish tissue in the lakes and to
    identify any trends in mercury concentrations over time. Ash Grove
    Permit Part II ¶ E.15.a.
    The soil monitoring requirements call for soil sampling and analyses for mercury and thallium at locations representative of both the area of maximum impact from stack emissions and background conditions in Chanute. The soil sampling is to be conducted quarterly for the first two years and annually thereafter. Ash Grove Permit Part II ¶ E.15.b. The results of both the fish and soil monitoring are to be evaluated against “benchmark” concentrations specified in the permit.26 If the Region determines that soil or fish concentrations are at or above the benchmark, or are trending towards the benchmark, Ash Grove may be required to undertake an additional study to quantify Ash 26

The “benchmark” level for mercury in fish tissue is 0.5 mg/kg. This value has been used as an action level for mercury fish advisories in at least two States. Responsiveness Summary at 53. The Region also cites EPA guidance on fish advisories in support of its selection of the 0.5 mg/kg level. Id. at 54. The Region selected the 0.5 mg/kg level after considering recommendations in the guidance regarding limits on fish consumption at different fish tissue concentrations. Continued

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Grove’s contribution to the observed metals concentrations.27 Ash
Grove may also be required to reduce metals emissions from its stack.
Ash Grove Permit Part II ¶¶ E.15.a.(3), E.15.b.(4). Conversely, if the
results of the fish or soil monitoring establish that levels of mercury
and thallium are below the benchmark levels, the Region may terminate one or both of the monitoring conditions. Ash Grove Permit Part II ¶¶ E.15.a.(4)(b), E.15.b.(5)(b). As a preliminary matter, we note that the BIF rule does not require or suggest that environmental monitoring conditions such as those at issue in this case be incorporated into a BIF permit. The BIF rule provides for permit conditions requiring many other types of monitoring, including monitoring of: feed rates, feed composition, carbon monoxide, hydrocarbons, oxygen, residues, and exhaust emissions. 40 C.F.R. § 266.102(e)(8)(i)(A)-(C). Environmental monitoring for mercury and thallium, as required by paragraph E.15 of Ash Grove’s permit, is not one of the types of monitoring specifically authorized by the BIF rule. The environmental monitoring conditions at issue here must be otherwise authorized by RCRA or its regulations in order to be included in this permit. In its response to Ash Grove’s petition, the Region offers multiple explanations of the authority justifying the inclusion of the environmental monitoring conditions. The Region contends that the monitoring requirements are authorized pursuant to RCRA’s omnibus provision because they are necessary to ensure protection of human health and the environment. RCRA § 3005(c)(3), 42 U.S.C. § 6925(c)(3). The Region also claims that 40 C.F.R. sections 270.10(k) and 270.30(h) The benchmark levels for mercury and thallium in soil are 5.6 mg/kg and 1.5 mg/kg respectively. Responsiveness Summary at 45. These levels were calculated to yield a hazard index of 0.25 (the target hazard index used in this permit process) for risks from a child’s ingestion of soil. The Region noted that the soil benchmark levels are higher than naturally occurring surface soil concentrations of mercury and thallium nationwide. Id. The benchmark levels for purposes of the environmental monitoring conditions are not to be confused with the benchmark hazard index discussed in the context of the risk assessment. The monitoring benchmarks are concentrations of mercury and thallium in various media (i.e., fish and soil). The benchmark hazard index is a generic measure of risk for non-cancer health effects. 27 This additional study is referred to in the permit as a “source to receptor” study, the purpose of which is to distinguish Ash Grove’s contributions to environmental levels of mercury and thallium from those from other sources. See Ash Grove Permit Part II ¶¶ E.15.a.(3)(b)(1), E.15.b.(4)(b); Response to Ash Grove Petition at 22-23. Inclusion of the source to receptor study appears to adequately address Ash Grove’s concern that the environmental monitoring permit conditions are vague and ambiguous with regard to how the Region will determine Ash Grove’s contribution to environmental levels of mercury and thallium.

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independently authorize the Region to require collection and submission of environmental monitoring data. As discussed below, it may be possible to require this type of permit condition, but the administrative record in this case does not provide an adequate explanation of the Region’s basis for doing so. (1) RCRA Omnibus Authority as Rationale for Environmental Monitoring Requirements The administrative record on the environmental monitoring requirements principally relies upon the omnibus authority as justification for these conditions. For example, the environmental monitoring section of the permit itself contains a paraphrase of the omnibus standard: Based on the results of [the multi-pathway risk assessment], and pursuant to EPA’s statutory mandate to assure protection of human health and the environment, EPA has determined that the Permittee must conduct an environmental monitoring program * * *. Ash Grove Permit Part II ¶ E.15. The Responsiveness Summary explicitly states that the environmental monitoring requirements were imposed pursuant to omnibus authority. Responsiveness Summary at

66. Finally, the Region invokes the omnibus provision in its response
    to Ash Grove’s petition:
    [T]he environmental monitoring requirements were
    included in the Permit, pursuant to EPA’s “omnibus”
    authority * * *.
    Response to Ash Grove Petition at 8.
    The Board addressed use of the RCRA omnibus provision as
    authority for environmental monitoring conditions in In re Chemical
    Waste Management of Indiana, Inc., 6 E.A.D. 144 (EAB 1995)
    (“CWMII”).28 CWMII involved permit conditions requiring ambient air
    monitoring at the perimeter of a hazardous waste treatment and landfill facility. The Board noted that regulation of air emissions through techniques such as monitoring is authorized by the RCRA omnibus 28

Other cases in which the omnibus provision was used to authorize permit conditions calling for environmental sampling include: In re Morton Int’l, Inc., 3 E.A.D. 857, 864 (Adm’r 1992) (upholding permit conditions requiring soil sampling and preliminary detection activities in process areas where releases may have occurred); In re Amerada Hess Corp. Port Reading Refinery, 2 E.A.D. 910, 911 (Adm’r 1989) (soil sampling in area of suspected release was authorized by the omnibus provision).

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provision “provided the record contains a properly supported finding
that such regulation is necessary to protect human health or the environment and provided there is an adequate nexus between the air emissions and the hazardous waste management activities carried on at the facility.” CWMII, 6 E.A.D. at 170. The Board remanded the monitoring conditions in CWMII, instructing the Region to clarify its explanation of authority in the record. Id. at 172-73. In this case, the Region’s on-the-record explanation of the necessity for the environmental monitoring conditions pursuant to the omnibus provision appears to be intertwined with its explanation of the feed rate limits for mercury and thallium. As discussed in the previous section, the Region noted that the permit limits on mercury and thallium yielded excess risk estimates for consumption of fish and ingestion of soil due to predicted mercury and thallium concentrations in fish and soil. The Region’s explanation of its need to include environmental monitoring conditions in the permit principally relied upon these risk assessment results. “The require-ment to perform a monitoring program of mercury concentrations in water and fish is based upon the results of the risk assessment.” Responsiveness Summary at 49. See also id. at 118-19 (noting that the thallium feed rates in the final permit have the effect of increasing the risk estimate for thallium; therefore, a soil monitoring condition was added in the final permit). Other portions of the administrative record suggest that the results of the risk assessment may be overstated. The Region compared the predicted concentrations of mercury in fish tissue against actual measurements of mercury in fish from Sante Fe Lake, a local water body. Responsiveness Summary at 15. The actual mercury levels in fish from Sante Fe Lake turned out to be much lower than the mercury levels predicted by the risk assessment calculations. Id. at 15, 67, 118; see also Response to Ash Grove Petition at 16. If the actual mercury concentrations in fish are lower than the predicted concentrations, a logical inference is that the risk associated with consumption of fish may also be lower than the Region’s estimate from the risk assessment. The Region is apparently in tentative agreement with this inference, but believes additional data are required before committing to such a position: EPA still believes that more data is necessary to confirm EPA’s conclusion - that the Risk Assessment may overstate the estimated risk to human health and the environment from mercury and thallium. Response to Ash Grove Petition at 12 (emphasis in original).

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It appears to us from the above-cited portions of the
Responsiveness Summary that the purpose of the environmental monitoring requirements is to settle some uncertainty in the Region’s original assessment of the risks posed by the facility. This justification of the environmental monitoring conditions causes us to further doubt the adequacy of the direct permit limits for mercury and thallium. As noted in the discussion of the mercury and thallium permit limits, supra Section II.B.4.a., the record currently before us is insufficient to support a conclusion that the permit limits are adequately protective of human health and the environment. The addition of monitoring conditions does not appear to rectify this deficiency because the use of monitoring does not exempt the Region from having to justify the protectiveness of the permit limits for the substances being monitored. Nor does the record’s explanation of the monitoring requirements amount to a sufficient justification under the omnibus provision to support the monitoring conditions. Perhaps the Region is trying to assert that the combination of the selected permit limits and the environmental monitoring conditions yields adequate protection for human health and the environment. If this is the case, the record does not provide a clear explanation or a “properly supported finding” to that effect. See CWMII, slip op. at 30; In re Sandoz Pharm. Corp., 4 E.A.D. 75, 81 (EAB 1992). There may also be other reasons, not evident in the record here, that would provide a “sufficient factual basis” to support an exercise of omnibus authority in connection with environmental monitoring.29 See Sandoz Pharm., 4 E.A.D. at 81. However, based on the explanations in the record before us, we do not believe that the Region has adequately justified the use of the omnibus authority for the mercury and thallium monitoring conditions. The inescapable suggestion from the administrative record is that the purpose of the monitoring provisions is to avoid having to resolve uncertainties regarding the protectiveness of the underlying permit limits at the present time. Further, there is an inadequate explanation of how the underlying permit limits for mercury and thallium, either alone or in combination with other conditions, are protective of human health and the environment. Under these circumstances, where the record suggests that the environmental monitoring conditions may be intended as a substitute for adequately protective limits on thallium and mercury, we are unwilling to 29 In CWMII, for example, the monitoring was designed in part to provide data regarding the effectiveness of pollution control measures at the facility. CWMII, slip op. at 29. Compliance assurance activities are just one possible rationale for including monitoring conditions pursuant to the omnibus provision, provided that such a justification enjoys adequate factual support in the administrative record.

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uphold the monitoring requirements without a fuller explanation of
their basis and purpose and their interrelationship with the underlying permit limits.30 We are remanding the environmental monitoring conditions so that the Region may provide an adequate explanation of how the omnibus authority justifies these permit conditions. The Region is invited to supplement the record as necessary during the remand process. The Region must also reopen the record for public comment on its decision regarding the environmental monitoring conditions. (2) 40 C.F.R. §§ 270.10(k) and 270.30(h) as Rationales for Environmental Monitoring Requirements The Region raises 40 C.F.R. sections 270.10(k) and 270.30(h) as justifications for the environmental monitoring conditions for the first time on appeal. If the Region intends to rely on these regulatory authorities, they must be asserted and explained in the record. The Board has remanded justifications for permit conditions raised for the first time on appeal when there is ambiguity between the record and the arguments advanced on appeal. See CWMII, slip op. at 10 (explanation for permit condition advanced for the first time on appeal; Board remanded for an explanation of why the challenged condition was reasonable); Austin Powder, 6 E.A.D. at 721 (lack of clarity in Region’s two justifications for permit condition, one of which was raised for first time on appeal, was grounds for remand); In re Amoco Oil Co., 4 E.A.D. 954, 964 (EAB 1993) (Board ordered remand when Region’s rationale for a particular permit decision was articulated for first time on appeal and was not supported by evidence in the administrative record; Region ordered to provide a detailed explanation of the permit decision and to reopen the permit proceedings to supplement the administrative record if necessary). Here, the administrative record focuses on the omnibus provision and makes no mention of 40 C.F.R. section 270.10(k) or section 270.30(h) as grounds for the environmental monitoring conditions. Thus, if these authorities are to serve as the Region’s justification of the monitoring conditions, the Region should first allow public notice and comment on these issues. 30

Although we are remanding the monitoring conditions, we are not suggesting that environmental monitoring can never be justified pursuant to RCRA’s omnibus authority. Neither are we foreclosing the possibility of using monitoring in combination with permit limits or other permit conditions. However, in order to meet the standards of the omnibus provision, environmental monitoring must be justified with a rational explanation and proper support in the record that the requirement is “necessary to protect human health and the environment.”

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We are remanding the environmental monitoring conditions. On
remand, the Region must revise the explanation of its authority to
include the environmental monitoring conditions in Ash Grove’s permit. The Region should address the disconnects in the record regarding its justification of these conditions under the omnibus provision. The Region may also choose to supplement the record in the course of revising its omnibus authority explanation or to provide an alternate explanation of authority. If it is not possible to provide an adequate explanation of the authority for the environmental monitoring conditions as written, the Region must revise or remove the conditions. The Region must also reopen the record for public comment on its action regarding the environmental monitoring conditions.

5. Conclusion on Risk Assessment Issues
   We decline to grant review of most of the issues on appeal pertaining to the risk assessment. We decline to review the Region’s authority to perform and use an indirect exposure risk assessment in the context of the permitting process. The use of a special analytical tool such as a risk assessment was not clearly erroneous, nor did it raise an important policy issue that merits Board review. We also decline review of the risk assessment methodology issues raised by the petitioners. The petitioners have failed to sustain the burden of persuasion applicable to issues involving technical judgment. Finally, we order a remand of the permit’s feed rate limits for mercury and thallium and the environmental monitoring conditions for those substances. C. Miscellaneous Issues In addition to the issues related to the performance of the risk assessment and permit decisions arising out of the risk assessment, Rollins et al. also raise a variety of miscellaneous issues in their petition for review. We address those issues briefly now.
6. Dioxin and Furan Permit Limits
   Rollins et al. assert, in conclusory fashion, that the Region failed
   to set an emissions limit for dioxins and furans. Rollins Petition for
   Review at 14 n.4. This claim is completely unsubstantiated and thus,
   barely merits discussion here. However, a similar issue was raised during the public comment period and we presume that Rollins et al. are seeking review of the same issue. See Responsiveness Summary at 79. The record shows that the permit does include controls on emissions of dioxins and furans by specifying a maximum inlet tempera-

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ture for the electrostatic precipitators (“ESPs”).31 Ash Grove Permit Part
II ¶¶ E.7.h.(8), E.7.i.(8); see also Responsiveness Summary at 80. At
certain temperatures, dioxins and furans can be formed in the ESPs
due to the reaction of chemicals in the flue gas and the particulates
captured by the device. 56 Fed. Reg. 7134, 7163 (Feb. 21, 1991).
Consequently, control of the temperature in the ESPs can limit dioxin
and furan formation and emissions. Ash Grove’s permit requires an
automatic waste feed cut off device to activate immediately if the temperature limit is exceeded. Ash Grove Permit Part II ¶¶ E.7.h.(11), E.7.i.(11). Rollins et al. have not explained why the Region’s previous response regarding dioxin and furan controls was erroneous or otherwise deserving of review.

2. Adequacy of Permit Conditions on Waste Analysis
   Rollins et al. argue that Ash Grove’s waste analysis plan, which
   sets the parameters for sampling and characterizing incoming hazardous waste feed, is inadequate and does not comply with 40 C.F.R. section 266.102. Rollins Petition for Review at 18-19. Specifically, Rollins et al. claim that the waste analysis plan does not ensure representative sampling of wastes. RCRA regulations require waste analyses, including the method used to obtain a representative sample, to be conducted in accordance with a sampling method specified in the regulations or an alternative sampling method that meets or exceeds the capabilities of the specified method. 40 C.F.R. §§ 266.102(b), 264.13(b)(3). In the course of the Ash Grove permitting process, the Region reviewed Ash Grove’s proposed waste analysis plan and concluded, in a rather detailed memorandum, that the plan exceeds the requirements of the specified method.32 The Responsiveness Summary references the Region’s “review” of the waste analysis plan and summarizes the Region’s conclusion as follows: EPA concluded that Ash Grove’s proposal to sample one container per pallet exceeded EPA’s sampling criteria as described in [the specified test method].

31

Electrostatic precipitators are air pollution control devices used to capture particulate matter in emissions from an industrial furnace. 32

Memorandum from Robert B. Dona, Environmental Engineer, U.S. EPA Region VII, to John J. Smith, Project Manager, U.S. EPA Region VII (June. 23, 1995). This memorandum and accompanying documentation were filed with the Region’s response to the petition by Rollins et al. Response to Rollins Petition Ex. 8.

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Responsiveness Summary at 133. The Responsiveness Summary also
indicates that the Region’s “review” of the waste analysis plan was
added to the administrative record. Id. However, the Responsiveness
Summary does not identify the review memorandum by title, author,
or date, and the memorandum does not appear in the certified index
to the administrative record. Therefore, it is not clear whether the
Region’s justification of Ash Grove’s waste analysis plan as reflected
in its detailed review memorandum was made available prior to the
appeal process.
The Board addressed a similar situation involving the omission of
a report from the certified index in In re Mayaguez Regional Sewage
Treatment Plant, 4 E.A.D. 772, 776 n.7 (EAB 1993), aff’d sub nom.
Puerto Rico Aqueduct & Sewer Authority v. EPA, 35 F.3d 600 (1st Cir.
1994). The Board noted that an item becomes part of the administrative record once it is cited in a response to comments document (here, the response to comments document is the Responsiveness Summary). While all items referenced in a response to comments document certainly should appear on the certified index, an omitted item is nonetheless a part of the administrative record and may be considered by the Board on appeal.33 The documents omitted from the certified index in this case present a more difficult question than the report omitted in Mayaguez. The waste analysis plan review memorandum is not actually cited by name in the Responsiveness Summary and there is no indication that Rollins et al. were aware of this specific memorandum prior to receipt of the Region’s response to their petition. At the same time, however, Rollins et al. have not specifically challenged the Region’s conclusion, as expressed in the Responsiveness Summary, that Ash Grove’s waste analysis plan exceeded the requirements of the specified sampling method. Rollins et al. have not alleged any deficiencies in the record on this issue, nor have they alleged that they unsuccessfully attempted to review the items relating to the waste analysis plan referenced in the Responsiveness Summary. Therefore, we find that Rollins et al.

33

Preparation of a certified index is not a requirement of the regulations governing the permit appeal process. See 40 C.F.R. § 124.19. The Board generally requests that a Region prepare and submit a certified index with its response to a petition for review as a matter of convenience for the Board. The Board views the certified index as evidence of the contents of the administrative record, but the index is not a substitute for 40 C.F.R. § 124.18. Section 124.18 specifies the items that make up the administrative record. The listed items include “[t]he response to comments required by § 124.17 and any new material placed in the record under that section.” 40 C.F.R. § 124.18(b)(4).

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have not adequately supported their request for review of the waste
analysis plan.

3. Consultation with Other Agencies
   Rollins et al. claim that the Region failed to conduct required consultations with federal and state agencies before issuing the Ash Grove Permit. Rollins Petition for Review at 19-20. Specifically, Rollins et al. state that consultation with the United States Fish and Wildlife Service (“FWS”) is required under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544, and that “appropriate Oklahoma agencies” should have been consulted due to the potential for transport of emissions from Ash Grove, which is located in Kansas, across the state line into Oklahoma. We address each of these contentions regarding interagency consultation in turn. a. Consultation Regarding Endangered Species Rollins et al. seek review of the Ash Grove permit on the basis that the Region failed to comply with section 7(a) of the ESA, 16 U.S.C. § 1536(a), which requires federal agencies to consult with the Secretary of the Interior (whose authority has been delegated to the FWS) regarding the effect of agency actions on threatened or endangered species.34 Rollins et al. assert that the Ash Grove permit cannot become effective until the Region completes the consultation process. Rollins Petition for Review at 19. The Region claims that the issue of FWS consultation was not raised during the public comment period on the Ash Grove permit. Response to Rollins Petition at 10. Although the Region appears to be correct on this point of procedure, we also note that the issue raised by Rollins et al. is now moot. The regulations implementing ESA section 7(a) and the regulations governing the RCRA permitting process both require the Region to consult with the Secretary of the Interior (whose authority has been delegated to the FWS) to ensure that the Region’s action in issuing a permit is not likely to jeopardize the continued existence of any endangered or threatened species or adversely affect critical habitat.

34

The regulations implementing ESA section 7(a) include “the granting of * * * permits” in the definition of agency action. 50 C.F.R. § 402.02 Action. See In re Dos Republicas Resources Co., 6 E.A.D. 643 (EAB 1996) for a more detailed discussion of the ESA consultation process in the context of EPA permitting.

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See 50 C.F.R. § 402.01(a) (regulations on interagency consultations
under the ESA); 40 C.F.R. § 270.3(c) (RCRA permit regulations requiring ESA consultations). Informal consultation may be used to initiate the consultation process, and in certain cases, informal consultation is sufficient to satisfy statutory obligations: If during informal consultation it is determined by the Federal agency, with the written concurrence of the
[FWS], that the action is not likely to adversely affect listed
species or critical habitat, the consultation process is terminated, and no further action is necessary. 50 C.F.R. § 402.13(a) (emphasis added). As emphasized above, written concurrence from the FWS is necessary in order to forego formal consultation procedures. It appears from the record in this case that the Region did not seek or receive written concurrence from the FWS on endangered and threatened species issues until well after the permit was issued by the Regional Administrator and the present appeals were filed. On January 15, 1997, the Region filed a motion with the Board seeking leave to supplement the administrative record to include written concurrence from the FWS indicating that formal consultation pursuant to ESA section 7(a) is not required for the Ash Grove permit. The FWS letter of concurrence is dated December 20, 1996, over four months after the Regional Administrator issued the Ash Grove permit. Although it appears that the Region failed to satisfy the regulatory requirements for endangered species consultation prior to issuance of the permit, the materials submitted with the Region’s Motion to Supplement the Record indicate that the required consultation process is now complete. Thus, the challenge by Rollins et al. with regard to ESA consultation is moot.35 Rollins et al. do not allege any substantive deficiencies in the permit terms or conditions regarding endangered or threatened species.

35
The situation regarding ESA section 7 consultation in this case is similar to that in Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997) (“SUWA”). In SUWA, the Bureau of Land Management (“BLM”) engaged in informal consultation with the FWS prior to implementing an agency action covered by the ESA, but had not obtained written concurrence Continued

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b. Consultation with Oklahoma Authorities
Rollins et al. cite no authority for their contention that the Region
was required to consult with Oklahoma agencies regarding the Ash
Grove permit. Although the Region was obligated to coordinate the
permitting process with Kansas, the State in which Ash Grove is located,
neither RCRA nor its regulations require coordination or consultation
with state agencies from neighboring States when issuing a federally
authorized RCRA permit.36 To the extent that persons or agencies in
Oklahoma were interested in the Ash Grove permit, they were of
course welcome to participate in the permitting process by submitting
comments or taking part in one of the public meetings. The Region’s
failure to actively seek input from Oklahoma authorities is not a matter of clear error subject to review. Neither are we persuaded that the lack of interagency consultation with Oklahoma in this case presents an important policy consideration that merits Board review. Rollins et al. argue that the impacts of Ash Grove’s emissions may be magnified in Oklahoma waters. Rollins Petition for Review at 20. However, the Region’s emissions modeling indicates that deposition of Ash Grove emissions decreases by two to three orders of magnitude within a few miles of the plant, well inside the Kansas border. Responsiveness Summary at 23; SAIC Report app. C at 4-10 through 4-26.37 In addition, pollutant concentrations in the Neosho River, which flows through southeast Kansas in the vicinity of Chanute and ultimately into Oklahoma, are expected to decrease with distance from Ash Grove due to additional flows from downstream tributaries. Response to Rollins Petition at 12. In light of the Region’s explanations regarding the minimal potential for impacts in Oklahoma, the petitioners’ conclusory allegations to the contrary do not present an issue that warrants review under the Board’s discretionary authority. from the FWS until after SUWA filed a citizens’ suit under the ESA. Because evidence of consultation was before the court, the court agreed that SUWA’s “claim was moot because the relief sought [had] been obtained.” Id. at 727 (citation omitted). 36 A neighboring State may be entitled to receive specific notice at certain stages of the permitting process if such a State is an “affected State” under 40 C.F.R. § 124.10(c)(1)(iii). Rollins et al. have not made any allegations regarding compliance with this notice requirement. Moreover, the notice requirement is not equivalent to mandatory consultation. 37 We note with interest that the Region’s modeling of emissions deposition from multiple sources in southeast Kansas indicates that the Aptus incinerator, with which Rollins is affiliated, is located in Coffeyville, Kansas, approximately five miles from the Oklahoma border. According to the Region’s modeling, the incinerator contributes more emissions to the areas immediately adjacent to Oklahoma than does Ash Grove.

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4. Adequacy of the Public Comment Period
   Rollins et al. seek a reopening of the public comment period for
   purposes of evaluating materials added to the administrative record
   during and after the comment period on the draft permit. Rollins
   Petition for Review at 21-22. To the extent that this request pertains to
   materials relevant to the final permit limits on mercury and thallium
   or the environmental monitoring conditions for those substances, we
   have ordered a limited reopening of the public comment period. See
   supra Section II.B.4. However, to the extent that Rollins et al. seek a
   general reopening of the comment period, their request is rejected.
   The regulations governing the permitting process do not call for
   a new comment period simply because the Region adds materials to
   the administrative record during its review of comments on the draft
   permit. 40 C.F.R. section 124.17(b) specifically contemplates supplementation of the administrative record during the Region’s preparation of the response to comments.38 The purpose of the response to comments and any supplementation of the administrative record at that time is to ensure that interested parties have full notice of the basis for final permit decisions and can address any concerns regarding the final permit in an appeal to the Board pursuant to 40 C.F.R. section 124.19. In re Amoco Oil Co., 4 E.A.D. 954, 980 (EAB 1993). A reopening is generally at the discretion of the Region and is only appropriate where information received during the comment period raises “substantial new questions” regarding the permit. 40 C.F.R.
   § 124.14(b). Except as noted above, Rollins et al. have not justified a
   reopening of the comment period. Thus, the opportunity for Rollins
   et al. to review items added to the administrative record occurred after
   the Region issued its final permit decision and before the deadline for
   filing petitions for review with the Board. The request for a general
   reopening of the public comment period is denied.
5. Overall Protectiveness of Emissions Limits in the
   Final Permit
   The final argument presented by Rollins et al. is a challenge to
   the overall protectiveness of the permit conditions in the final permit
   for Ash Grove. Rollins et al. cite decisions from permit appeals in
   which the Board and its predecessors have upheld the use of the

38
In this case, the response to comments document was referred to as the “Responsiveness Summary.”

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RCRA omnibus authority to impose permit conditions on hazardous
waste incinerators that were more stringent than the published regulations. Rollins Petition for Review at 22-24. Similarly, Rollins et al. would like the Region to invoke its omnibus authority in this case and incorporate emissions standards from a proposed regulation into Ash Grove’s permit. Id. at 26. The proposed regulation at issue involves revisions to the BIF rule and the RCRA regulations for incinerators, as well as establishment of Maximum Achievable Control Technology (“MACT”) standards under the Clean Air Act for most types of hazardous waste combustion facilities.39 The proposal has been generically referred to as the “proposed MACT standards.” RCRA’s omnibus authority has been successfully invoked to incorporate standards from proposed regulations into individual permits in appropriate circumstances. See, e.g., In re Thermal Oxidation Corp., 3 E.A.D. 261, 262 n.4 (Adm’r 1990); In re Envirosafe Services of Idaho, Inc., 3 E.A.D. 165, 167 (Adm’r 1990). However, it is not appropriate for a Region to make use of proposed regulations in the context of an individual permit unless a permit-specific analysis supports such an application. In re Allied-Signal, Inc. (Frankford Plant), 4 E.A.D. 748, 761 (EAB 1993). During the comment period on the draft Ash Grove permit, the Region addressed the potential for use of the proposed MACT standards in the context of the Ash Grove permit. The Region noted that the proposed MACT standards were still under development and were scheduled to be finalized sometime in 1997. Responsiveness Summary at 5, 35. Due to the nature of the rulemaking process, the Region determined that it was not appropriate to incorporate the proposed MACT standards into the Ash Grove permit at this time. However, due to comments on this issue, the Region included language in Ash Grove’s final permit expressly stating that the permit will be modified as necessary to comply with MACT once the rule is finalized. Id. at 5; see Ash Grove Permit Part II ¶ E.1. The Region’s decision with regard to the MACT proposal is neither clearly erroneous or otherwise deserving of review. III. CONCLUSION Review of the Ash Grove Permit Part II is denied with respect to the following issues: (1) the Region’s authority to perform and use an indirect exposure risk assessment in the context of the permitting

39

See Revised Standards for Hazardous Waste Combustors, 61 Fed. Reg. 17,358 (Apr. 19, 1996) (original proposal); 62 Fed. Reg. 24,212 (May 2, 1997) (revised proposal).

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process; (2) the risk assessment methodology employed by the Region
in this case; (3) permit limits on dioxins and furans; (4) permit conditions on waste analysis; (5) consultation with the FWS and/or Oklahoma authorities during the permitting process; (6) adequacy of the public comment period in general; and (7) incorporation of proposed MACT standards into Ash Grove’s permit. The permit is remanded with respect to the permit limits on mercury and thallium (Ash Grove Permit Part II ¶ E.6.b.) and the environmental monitoring conditions pertaining to these substances (Ash Grove Permit Part II ¶ E.15.).40 The Region is directed to reopen the permit proceedings for the limited purposes of: (1) providing a sufficient explanation of how the permit’s mercury and thallium feed rate limits adequately protect human health and the environment; and (2) revising its explanation of the authority to include environmental monitoring conditions for mercury and thallium in the permit. If the Region cannot justify the permit conditions as written, it should revise them and provide a justification for the revised conditions. The Region must accept and respond to public comment on its decisions. Any party who participates in the remand process on these two issues and is not satisfied with the Region’s decision on remand may file an appeal with the Board pursuant to 40 C.F.R. § 124.19. So ordered.

40

Although 40 C.F.R. § 124.19(c) contemplates that additional briefing typically will be submitted upon a grant of a petition for review, a direct remand without additional submissions is appropriate where, as here, it does not appear as though further briefs on appeal would shed light on the issues to be addressed on remand.

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