The petition focuses on the storage/feed handling building at the facility, which is separate from the incinerator. At the storage/ feed handling building, reactive waste will be processed to reduce its size, alter its configuration, reduce its explosive nature, and/or repackage it to make it suitable for introduction to the incinerator. Under the RCRA scheme, the storage/feed handling building is classified as a Miscellaneous Unit (MU) governed by Subpart X of 40 CFR Part 264. Subpart X was promulgated in 1987 as a catchall category for hazardous waste management units that did not fit into any of the then-existing regulatory categories in Part 264. See 52 Fed. Reg. 46946 (December 10, 1987) (final rule). Environmental performance standards for MUs are set out at 40 CFR § 264.601 of Subpart X, which gives the Agency considerable flexibility in choosing permit conditions appropriate to a particular MU. Typographical Error: Petitioners begin by pointing out a typographical error in the federal portion of the permit. Even though MDNR does not have authorization to regulate the MU in this case, it included in its portion of the permit (Part I) a Special Condition IV, which sets forth requirements relating to the MU. The Region, which is authorized to regulate the MU, attempted to incorporate by reference this Special Condition IV into the federal portion of the permit. As Petitioners correctly point out, however, the Region actually incorporated Special Condition II of MDNR's portion of the permit, the wrong section. The Region concedes that the federal portion of the permit refers to the wrong section of MDNR's portion of the permit. The Region states, however, that AES has indicated it will cause the permit to be modified under the procedures set out at 40 CFR § 270.42 to correct this mistake. The Region represents that it will ensure completion of the amendment. Accordingly, review of this issue is denied. Geologic Suitability of Site: Petitioners assert that geologic information available to the permittee and the Region, but not included in the permit application, suggests that the ground underlying the proposed site of the proposed MU is unstable and therefore unsuitable for the MU. Specifically, Petitioners say that a subsurface "collapse structure" lies immediately under or adjacent to the proposed MU. Petitioners also point out that a high water table lies under the site. Petitioners argue that such information should have been included in the permit application and that leaving it out of the permit application was a violation of 40 CFR §§ 270.23(b) & 264.601(a)(2). Section 264.601(a)(2) provides that, in writing a permit for an MU, the permit-writer must consider the geologic and hydrologic condi tions of the site to ensure that the proposed MU will not cause adverse effects on human health or the environment through a degradation of the groundwater.4 Section 270.23(b) provides that a permit application for an MU must include information about the hydrologic, geologic, and meteorologic conditions at the proposed site.5 In response, the Region points out that, in some cases, Section 270.23(b) provides that detailed information is not necessary and that "preliminary" hydrologic and geologic information will suffice.6 The Region argues that in this case, the preliminary hydrologic and geologic information contained in the permit application is sufficient. The Region concedes that the available geologic evidence suggests that varying levels of bedrock underlie the MU site, but the Region rejects the suggestion that the MU site necessarily sits on top of a "collapse structure." The Region also concedes that the average depth to groundwater is only 13.5 feet. The Region contends, however, that while such considerations as the varying level of bedrock and the depth of the water table would be important if the permit were for a land disposal facility, the permit for the MU in this case need not contain such an extensive geologic and hydrologic characterization of the site. The Region notes that, at any one time, the MU will handle no more than 8,320 pounds of reactive waste (including the 4 Under 40 CFR § 264.601, a permit for a miscellaneous unit must contain "such terms and provisions as necessary to protect human health and the environment." Section 264.601 provides that protection of human health and the environment includes: (a) Prevention of any releases that may have adverse effects on (2) The hydrologic and geologic characteristics of the unit and 40 CFR § 264.601(a)(2). 5 Section 270.23(b) provides that Part B of an application for a miscellaneous unit must include: Detailed hydrologic, geologic, and meteorologic assessments and 40 CFR §270.23(b). 6 See note 5 supra. weight of the hardware encasing the waste). See Permit, Part I, Special Condition IV.A.2. The Region also notes that the permit conditions governing the MU were derived in part from Subparts I (use and management of containers) and J (tanks) of 40 CFR Part 264. Those permit conditions require the permittee to take certain steps to ensure the physical integrity of the MU and to maintain a secondary containment system in case of leaks or spills. See Permit, Part I, Special Condition IV. For example, the containment system must be designed so that the concrete base will be free of cracks or gaps. The concrete base must be coated with an impervious sealant to ensure that potential leaks, spills, or accumulated precipitation will not migrate into pores or joints. See Permit, Part I, Special Permit Condition IV; Permit Application, Section 4. In addition, once each operating day, the permittees must conduct a thorough inspection of the MU for signs of corrosion or release. See Permit, Part I, Special Permit Condition IV.E. For the reasons outlined in the Region's response as noted above, we conclude that the permit application, as written, does not violate Section 270.23(b) and the permit, as written, does not violate Section 264.601. We also conclude that, with respect to this issue, the Petitioners have not carried their burden of identifying either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied. Condition of the Groundwater: To ensure that an MU permit will protect human health and the environment, Section 264.601(a)(3) provides that the permit writer must take into consideration the "existing quality of the ground water, including other sources of contamination and their cumulative impact on the ground water." Petitioners assert that the groundwater in the shallow aquifer under and around the site is contaminated with ammonia and nitrates from the activities of Atlas, the owner of the proposed facility and AES' parent company. Petitioners argue that this contamination is not accurately described in the permit. Petitioners also charge that groundwater samples from the perimeter monitoring wells are tested for only a small number of contaminants. In response, the Region states that it is aware of the contamination of the shallow aquifer underlying the Atlas facility. The Region also agrees that groundwater samples for the MU site were tested for only a few select contaminants. The Region explains that it did not require a complete water analysis for the groundwater at the site because there is no reason to believe that the MU will have any effect on the groundwater. In this regard, the Region notes that the MU is not a land disposal facility. The Region also explains that the condition of the groundwater at the site is being addressed through the corrective action requirements of Part II of the permit (Sections 1, 5, 6, 7, & 8) and through a Consent Order applying to Atlas, which is incorporated by reference into Part II of the permit. For the reasons outlined in the Region's response, we conclude that the permit, as written, does not violate Section 264.601(a)(3). We also conclude that, with respect to this issue, petitioners have not carried their burden of identifying either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied. Effect on Air Quality: Section 264.601(c)(5) provides that the permit writer must consider, among other things, the "existing quality of the air including other sources of contamination and their cumulative impact on the air." Petitioners argue that, because the proposed MU will be situated on property occupied by the largest air polluter in the area, the permit should discuss the cumulative impact of expected air emissions from the MU in combination with expected incinerator emissions and existing emissions. Petitioners charge that the absence of such a discussion in the permit violates Section 264.601(c)(5). According to the permit application, the only pollutant emissions anticipated from the MU are particulates generated during drilling, punching, sawing, and otherwise altering the waste feed materials, and Volatile Organic Compounds (VOCs) from the evaporation of the liquids used to desensitize bulk explosives during storage and transport. See Permit Application, Part B, Section 17-27. The Region notes that the permit specifies emission control devices for the MU to limit Volatile Organic Compounds (VOCs) and particulate emissions, and contends that ambient air emissions from the MU will be negligible. The Region also points out that Section 14 in Part II of the permit provides that the MU must comply with certain requirements of 40 CFR Subpart AA of Part 264 (Air Emissions Standards for Process Vents) and of Subpart BB of Part 264 (Air Emission Standards for Equipment Leaks). As for the existing air quality conditions, the permit application states that [t]he Joplin area currently has attainment status as of the National Ambient Air Quality Standards are Permit Application, Part B, Section 17-31. The explanation set forth in the Region's response is persuasive, and we conclude that, with respect to the issue of whether the permit violates Section 264.601(c)(5), petitioners have not carried their burden of identifying either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied. Location of Miscellaneous Unit: Petitioners assert that waste load confirmation and waste analysis sampling of incoming reactive waste (including munitions and nitroglycerin-based commercial explosives) will be conducted in the vicinity of the MU. Petitioners are concerned that an explosion in the waste sampling area could cause an explosion in the MU or vice versa. Petitioners believe, therefore, that the MU's proximity to the waste sampling area violates Section 264.601, which provides that miscellaneous units must be “located * * * in a manner that will ensure protection of human health and the environment The Region responds that this issue may not be raised now because it was not raised either at the public hearing or during the comment period, even though it was reasonably ascertainable at that time. See 40 CFR §§ 124.19(a) & 124.13. The Region also points out that the MU is approximately 400 feet from the parking area where waste analysis will be performed. The Region notes further that the permit prohibits chemical testing or treatment of the waste at the waste sampling area. In light of the Region's assertion that this issue was not raised during the public comment period and Petitioners' failure to include a demonstration in the petition for review that this issue was raised at the public hearing or during the public comment period, as required by Section 124.19, we conclude that this issue has not been preserved for review. We also conclude that, even if the issue had 7 Section 124.19(a), which governs this appeal, contains the following requirement: The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations * |