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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
defined by the Clean Air Act. This means that none

of the National Ambient Air Quality Standards are
being exceeded.

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

been properly preserved, petitioners have not identified 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.

The Trial Burn Plan: Petitioners believe that the handling and incineration of nitroglycerin at the proposed facility once operational will pose a threat to human health and the environment. As evidence, Petitioners point out that, to minimize risk to the public, the independent third parties who will conduct the trial burn for the incinerator will burn only a small fraction of the nitroglycerin that will be burned at any one time once the incinerator is fully operational. Petitioners argue that if it is too dangerous to burn the full amount of nitroglycerin during the trial burn, then it is too dangerous to burn the full amount once the incinerator is operating at full capacity.

In the permit application, Permittees explain that only a small amount of nitroglycerin will be burned at the trial burn because the trial burn will be conducted by untrained third parties over whom Permittees have no control. Permittees refuse to assume the risk of harm to the public that might result if the full amount of nitroglycerin were burned at the trial burn. See Application/Permit Page 12-30(c) (quoted in Petition for Review, at 8).

In its response to the petition, the Region notes that Petitioners' concerns about nitroglycerin focus on both the incinerator and the MU. The Region points out that the two units are separate, and that only the MU is permitted by EPA, whereas the incinerator is governed by the state-issued portion of the permit. The Region, therefore, addresses Petitioners' concerns only as they relate to the MU. The Region says that Atlas, AES' parent company, has been manufacturing nitroglycerin-based explosives for many years and has developed specific handling procedures and safety guidelines for that activity. The Region also points to several permit provisions designed to promote the safe handling of nitroglycerin and other reactive wastes. The Region states, moreover, that all personnel must be trained before performing hazardous waste treatment processes without supervision, and must follow the standards set out in the "DOD Contractor's Safety Manual for Ammunition and Explosives."

40 CFR § 124.19(a) (emphasis added). Under Section 124.13, issues must be raised during the public comment period if they are "reasonably ascertainable." 40 CFR § 124.13.

For the reasons outlined in the Region's response, we 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.

Miscellaneous Objections: Petitioners make the following objections about the MU operating procedures: (1) few, if any, of the specialized waste feed preparation activities to be carried out in the MU (e.g., de-fusing, pulling, sheering, punching, sawing) will be performed when the trial burn materials are prepared; (2) the permit does not require the permittee to demonstrate proficiency with each planned treatment procedure in the MU, even though the permittee has no historical experience with munitions disassembly; (3) the permit should require the permittee to deal with negative pressure, VOCs, or particulate emissions at the MU during the trial burn; and (4) the activities at the MU need far greater oversight than the permit requires.

The last of these objections is too vague to sustain. As for the first three objections, the common theme is that the permittees should be required to conduct trial runs of the activities to be carried out inside the MU before the incinerator goes into full operation. The Region does not directly respond to the question of whether trial runs of these activities should be conducted. Instead, the Region essentially argues that such activities will be subject to regulations and permit conditions that will ensure protection of human health and the environment. With respect to Petitioners' concerns about air emissions, the Region points out that it is not necessary to have negative pressure in the MU since no explosions or burning will take place there, and that VOCs and particulate emissions will be controlled with activated carbon and particulate filters.

After a review of the record, and based on the explanations contained in the Region's response, we conclude that the Region did not clearly err by failing to require trial runs for the activities to be conducted in the MU. We also conclude that Petitioners have not otherwise 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.

Policy Considerations: Petitioners urge review of the permit for the following "policy considerations": (1) the facility is experimental; (2) EPA has never processed a permit for incineration of explosives

of this nature; (3) the permittees lack experience with munitions and with incineration in general; (4) the permittee's owner, Atlas Powder Company, has an "abysmal" historical and environmental record at the same site; (5) there is no precedent for treating some of the waste streams under consideration here; (6) the geology of the site is unstable; and (7) the waste sampling area will be too close to the MU.

The sixth and seventh of these "policy considerations" have been dealt with in earlier parts of this opinion. As for the rest, we believe that the Region has given them adequate consideration. With respect to the first concern, the Region rejects the description of the facility as "experimental," arguing that all of the treatment technologies to be used at the facility have been proven. With respect to the second concern, the Region argues that the permit as written is adequate to protect human health and the environment and that it is thus irrelevant that EPA has never processed or approved a permit for incineration of explosives of this nature. With respect to the third issue, relating to the permittees' alleged lack of expertise, the Region notes that the permittees have demonstrated through the permit application that they have sufficient expertise to incinerate reactive waste. With respect to the fourth issue, relating to Atlas Powder's alleged "abysmal" environmental record, the Region responds that there are no specific federal laws or regulations requiring consideration of the facility's past environmental record. The Region also notes that the MDNR does not consider AES to be a "habitual violator." Finally, with respect to the fifth issue, relating to the alleged lack of precedent for treating certain waste streams to be incinerated at the facility, the Region states that the facility will follow Department of Defense procedures for treating the permitted waste streams prior to incineration. Based on the Region's response, we conclude that none of Petitioners' concerns rises to the level of an important policy consideration justifying review under 40 CFR § 124.19(a).

In summary, none of the bases set forth in the petition for review meets the threshold level for granting review, and the petition is accordingly denied.

So ordered.

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