containment features, and with sumps and pumps to direct spills to storage tanks. Region Response to Petitions at 16. Thus, the record on appeal indicates that all regulatory requirements for contingency planning and hazard prevention pursuant to 40 C.F.R. §§ 264.30264.56 have been satisfied.

C.

The State's third issue basically represents an expression of concern over whether the Region will vigorously enforce WTI's permit. The State makes reference to certain matters that presumably are intended to illustrate the basis for its concern; however, the State never specifically explains why they represent enforcement deficiencies, much less why they warrant any change in the Region's determination respecting the addition of the spray dryer.21 This listing of matters over which the State purports to see laxity in the Agency's enforcement initiatives, an allegation the Region contests, does not, without more, establish a link to a "condition" of the permit modification. Absent such a link, there is no jurisdictional basis for the Board to examine these concerns, for only "condition[s] of the permit decision" are reviewable on appeal to the Board. 40 C.F.R. § 124.19. The concerns expressed by the State do not contest any specific condition of the permit modification, nor do they allege that any of the Region's permit determinations were clearly erroneous or otherwise important enough to warrant review. Review is therefore denied.

Our reasons for dismissing this aspect of the State's petition do not in any way diminish the need for the Region to exercise its enforcement responsibilities with appropriate vigor and fairness. The Region has acknowledged its obligation, in conjunction with the State, to monitor WTI's compliance on a routine basis, to enforce the permit if instances of non-compliance occur, and, in the Region's words, "to provide oversight of State permits that are issued under a U.S. EPA authorized State program." See Response to Comments at 39.

21 The cited matters are (i) the omission of the facility owner from the original permit, (ii) a reference to a change of load bearing capacity, (iii) the “prompt notice requirements that WTI report violations," and (iv) the Region "should not ignore the lawful requirements of the governing bodies of this nation," an allusion to a relationship between local zoning requirements and the Federal Emergency Management Act and other unspecified laws of the State of Ohio. West Virginia Petition at 4.

D.

Finally, the State argues that because of the permit's reliance on waste feed indicators rather than discharge indicators, and because of the deletion of an earlier proposal to analyze the spray dryer liquid for metals and hazardous constituents,22 the Region may not be able "to identify and quantify the discharge of hazardous materials created during the WTI processes ***." This contention does not raise any issues warranting review. In essence, the State is arguing that the degree to which the Agency has relied on waste feed indicators prevents the Agency from formulating a permit that ensures that the incinerator's emissions are protective of human health and the environment. This argument seeks, in effect, to challenge the foundation of the Agency's regulations prescribing operating standards for hazardous incinerators. Those regulations make it clear, however, that use and analysis of waste feed indicators are integral to the attainment of performance standards. See generally, 40 C.F.R. Part 264 Subpart O (Incinerators); 40 C.F.R. §270.62. As stated in the preamble to the incinerator regulations,

A comprehensive analysis of the hazardous organic constituents of a waste as it is to be incinerated is necessary to identify the waste components to which the performance standard (especially the destruction and removal requirement) will apply. * * [T]he analysis required *** is necessary to allow EPA to define operating conditions necessary to incinerate the waste feed in compliance with appropriate performance standards.

46 Fed. Reg. 7668-69 (January 23, 1981). These regulations were drafted in complete recognition of the fact that it is impossible to monitor and quantify every single pollutant that may be potentially

22 Such a requirement was in the draft modification proposal but was subsequently deleted in response to WTI's comments. In its comments on the draft permit, WTI objected to performing these analyses on the grounds that they were "completely unreasonable, * * * time consuming, expensive, and would provide absolutely no useful information." See Response to Comments at 43 (quoting WTI). In response, the Region acknowledged the technical difficulties but it did not completely accept WTI's argument regarding the utility of the information that could be derived from the analyses. It nevertheless agreed to delete the provision from the permit with the understanding that "the U.S. EPA has decided to characterize the scrubber water during the trial burn to include analyses for total soluble hazardous constituents and condensable metals * * *." Id. In this manner, EPA will be able to set operating requirements in the permit so that the scrubber water will not interfere with the attainment of performance standards.

emitted from a hazardous waste incinerator. See, e.g., 46 Fed. Reg. at 7670, 7673. Although this means that the Region may never possess a definitive list of compounds coming out of the stack, a variety of other measures ensures that any such compounds will not present a threat to human health or the environment. These measures include carefully analyzing the waste feed; ensuring that the incinerator only burns the types of wastes that have been the subject of analysis; ensuring a 99.99% destruction and removal efficiency (DRE) for principle organic hazardous constituents (POHCs) 23 during the trial burn; 24 and limiting carbon monoxide (CO) emissions to 100 parts per million to ensure that the incinerator is operating efficiently (see note 16, supra).25 According to available scientific data, these measures ensure that hazardous constituents are not emitted in amounts that would present a threat to human health. Accordingly, to the extent the State's arguments seek to fault the Region for not accounting for every single pollutant potentially emitted from the facility, they completely misconstrue the nature of the Agency's regulatory program for controlling emissions from hazardous waste incinerators.26 Furthermore, since these arguments are in reality directed at the regulatory program itself, rather than the permit modification under consideration, the arguments are outside the scope of the proposal and, hence, outside of the scope of matters that

23 The Agency designates as POHCS those hazardous constituents that are most difficult to destroy, thereby ensuring that less stable hazardous organic constituents in the waste feed are also destroyed. See 46 Fed. Reg. 7669 (January 23, 1981); 40 C.F.R. §§ 270.62(b), 264.342. These POHCs must be destroyed or removed as required by the applicable performance standard.

24 More precise information about the pollutants will be derived from the trial burn and will be used to set operating parameters for the incinerator and related components.

25 CO concentration in stack emissions is considered a conventional indicator of combustion efficiency. In addition, maintaining CO levels at less than 100 ppm ensures that emissions from products of incomplete combustion do not pose an unacceptable health risk. See Guidance on PIC Controls for Hazardous Waste Incinerators, Volume V of the Hazardous Waste Incineration Guidance Series at 1-1 (April 1990).

26 As the Region's response to the petition makes clear, the State ignores the numerous mechanisms in place that allow U.S. EPA to determine whether emissions limits are being complied with. To conclude that the installation of the spray dryer would ultimately cause increased emissions without addressing other factors contributing to emissions is not accurate. Several factors under the control of WTI can be adjusted to reduce stack emissions, i.e., a) waste feed characteristics; b) waste feed rates; c) incinerator operating conditions such as pressure, temperature, residence time, and superficial velocity; and d) air pollution control equipment operating conditions such as the number of ESP fields to be operated and liquid to gas ratio in the wet scrubber.

Region Response to Petitions at 18 (citations omitted). Nowhere is there any indication that the Region's reliance on waste feed analysis is in lieu of necessary, complementary provisions for monitoring emissions and operating conditions at the facility.

rected at the regulatory program itself, rather than the permit modification under consideration, the arguments are outside the scope of the proposal and, hence, outside of the scope of matters that may be heard on appeal. Therefore, the issue the State raises is not subject to review on appeal of the permit modification.

STEIN/SOS AND KUSIC APPEALS

Petitioners Constance W. Stein (individually and on behalf of SOS) and Samuel N. Kusic contend that the Region's responses to comments were non-responsive and clearly erroneous and that each response should be reviewed because each such decision constitutes an abuse of discretion and is contrary to the law or public policy. Stein and Kusic Petitions at 1. Mr. Kusic also contends that each such decision is arbitrary and capricious. In addition, Mr. Kusic argues that the Region's notice of the February 3, 1992 modification was defective because it was dated February 3, 1991.

Although both Petitioners have correctly stated the standard for granting review under 40 C.F.R. § 124.19, neither identifies any discrete finding of fact or conclusion of law made by the Region which they contend was clearly erroneous or otherwise warrants review. Rather, both Petitioners seek review of each of the Region's responses. Such a request fails to provide the required statement of reasons supporting review.27 See 40 C.F.R. § 124.19 (petitions for review shall include a statement of reasons supporting review).

Mr. Kusic's argument that notice of the February 3, 1992 modification was defective is without merit. The Region has acknowledged that its original notification letter contained a typographical error, i.e., it was dated February 3, 1991, rather than February 3, 1992. As the Region notes, however, the error was discovered and corrected

27 On April 30, 1992, the Board received a submission from Ms. Stein and SOS entitled, "Reply to WTI's Motion to Dismiss and Cross Motion for Sanctions" (hereinafter "reply"). In this reply, Ms. Stein refuted WTI's assertion that the petition should be dismissed. See note 1, supra. In so doing, however, the reply launched a personal attack on Charles H. Waterman III, WTI's attorney, accusing him of, among other things, unscrupulous and unethical behavior. On May 7, 1992, WTI submitted a motion to strike the reply or at least those parts of the reply personally attacking Mr. Waterman. See Motion of Waste Technologies Industries to Strike Reply of Constance W. Stein and SOS to WTI's Motion to Dismiss and Motion to Strike the Cross Motion for Sanctions. WTI's motion to strike is granted. The reply is replete with inflammatory language and unsupported attacks on Mr. Waterman's character and competence. Because these attacks appear throughout the reply and are intertwined with the substantive arguments, the entire document is hereby stricken from the record on appeal.

shortly thereafter and neither Mr. Kusic nor anyone else has been prejudiced by the error. (We note that, despite the error, Mr. Kusic's appeal was timely).

SIERRA CLUB APPEAL

In a one page letter objecting to the spray dryer modification, the Sierra Club states:

[s]cientific procedure mandates that a baseline study be conducted before the test burn. This must be done to establish the existing levels of chemical compounds that already exist in the biosphere (humans, air, water, soil, plants and animals) within a proscribed [sic] affected area.

In the absence of the baseline study, the results of a test burn will be questioned by the scientific community.

Sierra Club Petition (emphasis in original). This objection, however, does not raise any substantive issue for review with regard to the spray dryer modification. Rather, it suggests the addition of a new permit requirement unrelated to the modification. Moreover, the petition cites no regulatory or scientific basis for such a study in the present context. The petition therefore fails to satisfy the requirements for review under 40 C.F.R. § 124.19.

HICKS APPEAL

Carol Hicks raises a total of three issues on appeal. These are: (1) the spray dryer should be considered a major design change requiring new modeling and risk analysis because it could have a "major impact on both the air quality and overall plant operation which were not previously, correctly evaluated."; (2) use of the spray dryer will increase stack emissions and result in new combinations of chemicals and metals being released into the environment; and (3) the effective stack height would be lowered because of heat loss. caused by the spray dryer design, making the air model previously used incorrect.28 For the following reasons, review is denied.

28 Ms. Hicks concludes that the permit process should be reopened by the Ohio EPA. To the extent her request is directed to the Ohio EPA, not the U.S. EPA, it is obviously misdirected and will receive no consideration from us. To the extent the request may have also been intended for the U.S. EPA, it is denied for the reasons stated in the text above.