wants the Agency to propose the issuance of an entirely new permit for the facility, with both WTI and the Port Authority named as co-permittees. It is also possible that the City wants us to revoke or stay the permit in the meantime, until a new permit can be put into effect. We decline to explore these possibilities. It is only with extreme reluctance-absent a showing of imminent danger to human health or the environment-that we would undo a permit issued nearly nine years ago for a facility which is presently under construction, and nearly completed, merely to adjudicate the addition of a co-permittee's name to the permit. There has been no showing of imminent danger in this instance, and it seems doubtful that there could be. More fundamentally, however, we believe that delving into the permit's validity nine years after it was issued is beyond the scope of the this Board's jurisdiction, which is confined to reviewing the Region's most recent permit determination, not the determination it made in 1983. See 40 C.F.R. § 124.19. Accordingly, we make no official ruling on the permit's validity. us. That aside, we turn to the matters that are legitimately before B. The City contends that the additional permit conditions added to the permit for controlling potential adverse effects of the proposed spray dryer will nonetheless be "ineffective in ensuring compliance with the Clean Air Act and applicable regulations." The City cites several reasons in support of this contention, none of which satisfy the requirements for review under under 40 C.F.R. $124.19. The overarching defect is that not only are the reasons individually unpersuasive 16 but they also fail to recognize that compliance with 16 The City's arguments are, in large measure, criticisms of the permit that the City could have raised when the original permit determination was made in 1983. As noted elsewhere in our decision, objections to that determination are outside the scope of the instant permit modification determination and are not subject to review in this proceeding. In other words, such objections are out of time. Therefore, for these reasons alone, the City's arguments must be dismissed. We nevertheless briefly address them below for the sake of completeness and to provide added context for other subjects addressed in this decision. First, the City argues that "inaccuracies in the samplings, inspections, and other procedures prescribed in the company's Waste Analysis Plan (WAP) will make it impossible to achieve compliance with the prescribed emission limits * * *." The City provides no support for this assertion, however. Rather, it simply states that inaccuracies could result from the WAP's waste sampling measures thereby making it impossible to reduce emissions by adjusting waste feed characteristics. As the Region stated in its Response to Comments (p. 27), however, emissions standards will be achieved through a number of different mechanisms, not just those identified in the City's petition. Therefore, when the City singles out a few select features of the permit for criticism,17 it fails to see the larger, more complete picture. 18 The Prior to waste approval at the facility, each customer is required The Region determined that these sampling procedures will allow the waste feed to be properly monitored and controlled and will ensure the protection of human health and the environment. There is nothing unreasonable about this determination, and nothing in the City's petition convinces us otherwise. Second, the City argues that the permit's monitoring requirements are inadequate since they call for continuous monitoring of less than all pollutants and only periodic monitoring of others. Petition at 7-8. This argument does not establish grounds for reviewing the permit. The permit's continuous monitoring requirements for carbon monoxide, oxygen, and hydrocarbons gauge the incinerator's efficiency, which affects all pollutants. Any breakdown in the efficiency will be detected, thus helping to ensure that all pollutant levels will be maintained within acceptable limits. Finally, the City argues that emissions limits necessary to protect human health and the environment should have been established prior to approval of the modification rather than after the trial burn, and that deferring this determination will foreclose public comment and review. The City implies that establishing emission parameters following the trial burn will not ensure adequate protection of human health and the environment. We disagree. The regulations require that operating conditions be set based on the results of the trial burn and that any permit modification proceed in accordance with 40 C.F.R. Part 270.42. See 40 C.F.R. § 270.62(b)(10); 40 C.F.R. §264.345(a). Appendix I to 40 C.F.R. § 270.42 indicates that minor changes in operating requirements reflecting the results of the trial burn are considered Class 1 modifications. See 40 C.F.R. § 270.42(a). Thus, by inference, major changes would be considered Class 2 or 3 modifications and require some form of public participation. Nothing in the City's petition or in the record on appeal persuades us that the permit, as currently drafted, will prevent the Region from establishing emissions parameters protective of human health and the environment. 17 Id. 18 An examination of the permit reveals numerous examples of permit conditions not mentioned in the City's petition which, along with other permit conditions specific to the spray dryer, serve to control potential adverse effects of the incinerator and associated equipment such as the spray dryer. In particular, permit condition C.23 (General Operating Requirements for Incineration System), specifies permissible carbon monoxide levels in the flue gas leaving the electrostatic precipitator; requirements for monitoring and recording of carbon monoxide on a continuous basis; waste feed Continued totality of the permit is the real gauge for calibrating effective compliance, and the City has not raised any serious doubts about the ability of the permit as a whole to control any adverse effects from adding the spray dryer. Accordingly, we do not believe that the City, with its narrowly drawn criticisms of selected individual features, has met its burden of demonstrating that the permit should be reviewed. STATE OF WEST VIRGINIA APPEAL Attorney General of the State of West Virginia raises four issues on appeal. None of these issues warrants the Board's review. A. Stated briefly, the State basically argues that the Region should have, but did not, consider whether the site for the facility meets applicable legal and safety standards. The Region had dismissed consideration of this issue because in its opinion the issue was unrelated to the proposed addition of a spray dryer and because the siting issue had been addressed in the original permit determination in 1983. According to the ground rules set by the Region when it solicited public comment on the permit modification, "only those sections of the permit affected by the modification shall be subject to review by the Agency or by the public." Region Response to Petitions at 14. On appeal the State argues that siting issues may be properly raised in this instance since, as provided in 40 C.F.R. §270.41(c), there is "new information or standards indicat[ing] that a threat to human health or the environment exists which was unknown at the time of permit issuance." According to the State, this criterion is met by an Ohio statute (no citation supplied) that was added to the Ohio Revised Code in 1984. The State says the statute pro operating and monitoring requirements, such as, total feed rate, including limitations on the waste feed rate and auxiliary fuel to each incinerator (limited to the range of 49 million Btu/hr to 97.8 million Btu/hr heat input (3 operating hour average)); requirements for monitoring and recording the feed rates for pumpable and gaseous materials; restrictions on waste feed containing any chemical constituents listed in 40 C.F.R. Part 261, Appendix VIII, which have a heat of combustion lower than carbon tetrachloride; mandatory temperature ranges in the secondary combustion chamber while burning hazardous waste (a minimum temperature of 983 degrees Celsius (1800 degrees Fahrenheit) or 1205 degrees Celsius (2200 degrees Fahrenheit), subject to the results of the trial burns; minimum oxygen concentrations in the flue gas leaving the electrostatic precipitator; limitations on total hydrocarbon concentration in the flue gas leaving the wet scrubber; maintenance at all times of the design particulate removal efficiency of the electrostatic precipitator; and cut off of all hazardous waste feed when certain operating limits are exceeded or if there is a loss of draft (negative pressure) for a period of two (2) seconds or longer. hibits locating the active components of certain hazardous waste facilities within 2,000 feet of “any residence, school, hospital, jail or prison" or within "[a]ny flood hazard area" if the applicant is unable to show that it can withstand certain flood conditions. We do not believe that West Virginia has made its case by relying on this eight year old Ohio Code provision. First, as a result of administrative appeals, the original permit did not become effective until January 25, 1985, meaning that as a purely technical matter the so-called "new information or standards" was actually not new when the permit became fully effective. 19 Therefore, section 270.41(c) is not available for the use specified by the State. Second, even if the initial permit issuance date (1983) rather than the final permit issuance date (1985) is used as the point of reference, the State's petition does not identify, allege, or single out even one feature of the facility that arguably causes the facility to contravene the Ohio Code provision. By this omission the State's allegation regarding the applicability of section 270.41(c) is obviously incomplete and therefore fails for a general lack of specificity. See Vermont Yankee Nuclear Power Plant Corp. v. NRDC, 435 U.S. 519, 553-54 (1978); In the Matter of RMI Company Extrusion Plant, RCRA Appeal No. 8920 (May 29, 1991). As to whether the Ohio Code provision represents the kind of new information or standards contemplated by section 270.41(c), the petition also fails on that count. There is no indication that in enacting the provision the Ohio General Assembly made a determination that facilities sited prior to the Code provision's enactment necessarily pose a threat to human health or the environment. Moreover, section 270.41(c) is concerned with new information or standards that might cause the permit issuer to reevaluate whether he correctly assessed the level of risk posed by the facility at the time the permit was issued. In other words, is the risk calculus materially affected by the new information or standard? In answer to this question, we do not believe the Ohio Code provision has any material bearing on EPA's decision. First, the 2,000-foot restriction in the Code represents a generalized, legislative determination by the Ohio legislature rather than a factual determination respecting the actual level of risk presented by this particular facility. EPA's own siting standards are not constrained by this or similar restrictions. According to a report in the administrative record, the Ohio authorities in charge of administering this Code provision determined 19 Under 40 C.F.R. § 124.15(a), a final decision by the Regional Administrator to issue a permit does not take effect if the permit decision is appealed in accordance with § 124.19. Since there were appeals of the 1983 permit determination, an argument can be made that permit issuance did not occur until the appeals process was completed in 1985. See also 40 C.F.R. § 124.19(f)(1). that the proposed incinerator will not pose an environmental risk to receptors within the 2,000-foot zone.20 Second, the flood area restriction in the Code is addressed by EPA's own siting standards, and the permit restricts active portions of the facility to a level above the 100-year flood level, which is not materially different from the Ohio Code provision. Accordingly, we conclude that the State of West Virginia has not met its burden on this issue. B. The second of the State's four issues centers on the State's assertions that the Region has failed to "indicate that the Emergency Response will be adequate to prevent harm" or that the Agency "will be able to promptly help with local emergency containment of spills before harm occurs to West Virginia's environment and its citizens." West Virginia Petition at 3-4. We see no reason to review the permit based upon these assertions. The permit's contingency plan specifies the procedures that WTI must follow in responding to "fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents" in order to minimize hazards to human health or the environment. See 40 C.F.R. § 264.51(a). As the Region stated in responding to comments, WTI's contingency plan contains specific procedures to respond to an emer- Response to Comments at 23. This plan is on file at the facility, the East Liverpool Fire Department, and the East Liverpool Hospital. In addition, the Region has indicated that "[1]ocal emergency response authorities will receive assistance from U.S. EPA's and OEPA's emergency response personnel as necessary to protect public health and the environment." Id. at 22. Also, as the Region points out, the facility is designed to prevent spills from reaching the Ohio River. This is accomplished through an extensive containment system that includes paved storage and process areas surrounded with secondary 20 See Center for Hazardous Materials Research, "Final Report: Environmental Review of the Waste Technologies Industries Hazardous Waste Incinerator Located in East Liverpool, Ohio," at 3-4, 3-5 (September 1991). |