formed an integral part of DOH's analysis in this case. See, e.g., AAQ Report at 2 (stating that "[t]he turbines will be operated in simple cycle mode. Future plans are to convert M17 & M19 to combined cycle operation, however the future change is not apart [sic] of this project.”). Indeed, Waimana acknowledged this distinction by framing its comments in two sections of the Comment Letter, with one section discussing combined cycle operation and the other discussing simple cycle operation. Comment Letter at 1-2. Waimana's reference now in its Petition to the KCP permit, which it characterizes as demonstrating that SCR is feasible in "two single cycle," without any further explanation of the operating conditions of the KCP project and without any explanation as to what is meant by "two single cycle," is not sufficient to show that DOH committed clear error in determining that SCR is not demonstrated for simple cycle operation.

The absence of detail in Waimana's argument is striking in comparison with the Wong Letter contained in the record, which clearly states that there are significant differences between the simple cycle operation contemplated by the Permit in this case and the cogeneration operation of the KCP project. DOH also has stated in its Response to the Petition that "the circumstances and conditions at MECO's and KCP's facilities are different and cannot be compared" due to the differences between simple cycle and cogeneration. DOH Response at 12. Specifically, DOH explains as follows:

The comparison between KCP's proposed facility and
M17 and M19 is invalid and does not demonstrate a basis
for review of the permit. Contrary to Waimana's assertion,
the proposed KCP facility will not operate in true simple
cycle mode. Rather, the KCP facility will operate in a
cogeneration cycle combustion turbine application
employing a heat recovery steam generator (“HRSG”).
KCP's cogeneration cycle mode is different from the sim-
ple cycle mode of M17 and M19.

DOH's Response at 10 (citations omitted).

DOH explains further that "[i]n true simple cycle operations, there is typically no HRSG" and "[t]he exhaust temperatures of the simple cycle turbines, like those of M17 and M19, are generally high and outside the

operating windows of the SCR units.” Id. at 11. Finally, DOH concludes as follows:

Currently, MECO's M17 and M19 project is a true simple
cycle operation and is not equipped with a HRSG.
Exhaust temperatures from the simple cycle turbines
could exceed the recommended operating range of the
SCR. MECO's plans to operate the turbines as peaking
units will further exacerbate operating conditions by sub-
jecting the SCR to wide temperature swings and extreme
thermal stresses. In short, the circumstances and condi-
tions at MECO's and KCP's facilities are different and can-
not be compared.

Id. at 12. These distinctions between the KCP project and MECO's Units M17 and M19 are consistent with the record in this case. See Wong Letter. In contrast, not only has Waimana failed to explain in its Petition why it believes that the two projects are similar, Waimana has also failed to identify (and we have not found) any support in the record for Waimana's contention that the projects are similar or that KCP's use of HRSG is not a valid distinction. Accordingly, Waimana's arguments in its Petition fail to show any clear error in DOH's analysis.

For the foregoing reasons, we deny Waimana's request that we review the Permit conditions specifying that water injection, not SCR, will be BACT for controlling NO, emissions for this Permit for Phase 1 of MECO's project.

III. CONCLUSION

For the reasons set forth above, we deny Waimana's Petition for review of the PSD Permit issued by DOH to MECO.

So ordered.

IN RE ENVIRONMENTAL
DISPOSAL SYSTEMS, INC.

UIC Appeal Nos. 98-1 & 98–2

ORDER DENYING REVIEW

Decided October 15, 1998

Syllabus

Petitioners Sandra K. Yerman and Michigan State Representative Raymond E. Basham have filed petitions seeking review of U.S. EPA Region V's decision to issue two Underground Injection Control ("UIC") permits to Environmental Disposal Systems, Inc. ("EDS"), pursuant to the Safe Drinking Water Act, as amended, 42 U.S.C. § 300f et seq. The permits authorize the construction and operation of two Class I injection wells in Romulus, Michigan, to be used for the commercial disposal of hazardous liquid waste from a variety of sources. Each petitioner raises numerous objections to the Region's permit decision in this matter.

Ms. Yerman's petition includes the following objections: 1) Ms. Yerman's copy of a letter from Rebecca Harvey, Chief of the Region V Underground Injection Control Branch, transmitting the final permits to EDS was not signed; 2) the final permits and the Region's response to comments document were not available for timely viewing at two public libraries in the community; and 3) the permits were not signed by Jo Lynn Traub, Director of the Region V Water Division.

Mr. Basham's petition includes the following objections: 1) the permit should include a monitoring schedule for likely waste sources; 2) EDS should be required to conduct a survey of the area surrounding the injection wells to determine what other wells may exist because information supplied by the Michigan Department of Environmental Quality ("MDEQ") was unreliable; 3) changes in the quantities or types of fluids injected into the wells should not be considered minor permit modifications, and public hearings should be held whenever such changes are made; 4) MDEQ does not have adequate staff or financial resources to properly oversee the proposed wells; and 5) Region V's Environmental Justice determination was flawed because the Region conducted its demographic analysis using data from a two-mile rather than a four-mile radius surrounding the proposed wells.

Held: Yerman Petition: (1) Although the letter transmitting the permits was not signed, the permit itself was signed. The letter was not integral to the permits' terms and thus cannot serve as a basis for Board review;

(2) The alleged delay in making the permits available at local libraries did not prejudice Ms. Yerman as she was given a total of 36 days to review the final permit and file her appeal, six days more than required by the applicable regulations; and

(3) The fact that the permits were not signed by the Director of the Region V Water Division does not serve as a basis for Board review because the permits were signed by the Director's authorized representative.

Basham Petition: (1) Mr. Basham has failed to convince the Board that the absence of a monitoring schedule for likely waste sources is erroneous or otherwise warrants review;

(2) Mr. Basham's assertion that MDEQ data on the presence of deep wells in the area were unreliable is unsupported by the record. Morever, the Region did not rely solely on data supplied by MDEQ. Thus, the Board is not convinced that the Region's conclusion regarding the absence of deep wells in the area was erroneous;

(3) Pursuant to 40 C.F.R. § 144.41(e), “a [c]hange [in the] quantities or types of fluids injected which are within the capacity of the facility as permitted and, in the judgment of the director, would not interfere with the operation of the facility or its ability to meet conditions described in the permit and would not change its classification" is considered a minor permit modification. Thus, to the extent that Mr. Basham argues that changes in the quantities or types of fluids should not be considered a minor permit modification, he is essentially challenging the validity of the UIC regulations. As a permit appeal is not an appropriate forum in which to present such a challenge, review is denied on this issue;

(4) Because Mr. Basham's concern that MDEQ does not have adequate staff or financial resources to properly oversee the proposed wells does not challenge the validity of any particular provision of the EDS permits, it fails to satisfy a basic prerequisite for obtaining Board review under 40 C.F.R. § 124.19, namely, the identification of a specific permit term that is claimed to be erroneous. Moreover, because EPA rather than the State is primarily responsible for the enforcement of UIC requirements in Michigan, Mr. Basham's objection is misdirected; and

(5) Mr. Basham's objection to the Region's Environmental Justice determination is rejected as a basis for review. As the Board has previously stated, the Region has broad discretion to determine the proper scope of a demographic study. In re Envotech, L.P., 6 E.A.D. 260, 283 (EAB 1996) (quoting In re Chemical Waste Management of Indiana, Inc., 6 E.A.D. 66, 80 (EAB 1995)). Mr. Basham has failed to establish that the Region's determination in this regard was erroneous or otherwise warrants review.

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

Opinion of the Board by Judge Reich:

I. BACKGROUND

Petitioners Sandra K. Yerman and Michigan State Representative Raymond E. Basham have filed petitions seeking review of United States Environmental Protection Agency Region V's decision to issue two Underground Injection Control ("UIC") permits to Environmental Disposal Systems, Inc. ("EDS"), pursuant to the Safe Drinking Water Act ("SDWA"),

'Environmental Appeals Judge Kathie A. Stein did not participate in this decision.

as amended, 42 U.S.C. § 300f et seq.' The permits authorize the construction and operation of two Class I injection wells in Romulus, Michigan, to be used for the commercial disposal of hazardous liquid waste from a variety of sources. Both Region V and EDS have submitted responses to the petitions. See Region's Response to Petitions for Review (“Region's Response") and EDS's Response to Petitions for Review.

The Region issued draft permits for the injection wells on August 21, 1997, and solicited public comments from September 3 through October 24, 1997. A public hearing was held on October 9, 1997, in which both petitioners participated. See Exhibit (“Exh.”) B to Region's Response (transcript of public hearing). The Region issued the final permits on March 18, 1998 (Exh. E to Region's Response), along with a document responding to comments received during the comment period. Response to Comments (Exh. D to Region's Response). These petitions for review followed. See 40 C.F.R. § 124.19 (Appeal of RCRA, UIC, and PSD Permits).

II. DISCUSSION

Under the rules governing this proceeding, a UIC permit decision will ordinarily not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. 40 C.F.R. § 124.19(a). As the Board has stated on numerous occasions, the Board's power of review should be "sparingly exercised" and "most permit conditions should be finally determined at the Regional level." In re NE Hub Partners, L.P., 7 E.A.D. 561, 567 (EB 1980) (quoting 45 Fed. Reg. 33,290, 33,412 (May 19, 1980)). The burden of demonstrating that review is warranted rests with the petitioner who challenges the Region's permit decision or the conditions contained in the permit. See 40 C.F.R. § 124.19(a); In re Envotech, L.P., 6 E.A.D. 260, 265 (EAB 1996).

- The SDWA and its implementing regulations prohibit any unauthorized underground injection. SDWA § 1421(b), 42 U.S.C. § 300h(b); 40 C.F.R. § 144.11. Except where a well is authorized by rule (which is not the case here), a new underground injection well may not be constructed unless a permit is obtained. 40 C.F.R. § 144.11.

The UIC regulations group injection wells into five “classes” depending upon the substances to be disposed of in the well. 40 C.F.R. § 144.6. The proposed wells in this case are considered Class I hazardous waste injection wells (40 C.F.R. § 144.6(a)(1)) and are therefore subject to more stringent permitting criteria than other types of wells. Compare 10 C.F.R. Part 146, Subpart B (technological standards applicable to Class I nonhazardous wells) with 40 C.F.R. Part 146, Subpart G (technological standards applicable to Class I hazardous waste injection wells) and 40 C.F.R. § 144, Subpart F (financial responsibility requirements uniquely applicable to Class I hazardous waste injection wells).