cance for the first time on appeal. The permitting rules contemplate that the Region will initially consider and analyze information relevant to the final permit determination. Immediate consideration of the newly submitted information on appeal would circumvent that orderly process, forcing the Board to either forego the Region's views-an obviously undesirable consequence or to solicit them separately (along with those of other interested parties), thereby running the risk of transforming the appeal process into a full fledged public comment process-a matter best left to the Region in the first instance. Indeed, the Region itself has suggested that if the additional evidence is to be considered, the affected permit issues should be remanded to the Region for further consideration. 10 To ensure adequate consideration of Chevron's request, this proceeding will be remanded for additional limited proceedings. The Region is directed to consider whether, under the circumstances, the record should be supplemented with the additional information supplied by Chevron. If the Region determines that this information should become part of the administrative record, it should solicit public comment thereon. The Region should then determine whether the permit's current limitation on the amount of wastes entering the incinerator and the mass feed rates for the four metals mentioned above should be revised. On remand, the Region must also clarify its rationale for selecting a cancer risk level of 1x10-6 rather than the 1x10-5 level recommended by an EPA guidance document cited by Chevron as well as the proposed rules for owners and operators of hazardous waste incinerators. See Guidance on Metals and Hydrogen Chloride Controls for Hazardous Waste Incinerators, Volume IV of the Hazardous Waste Incinerator Guidance Series, at Appendix I-13 (August 1989); Standards for Owners and Operators of Hazardous Waste Incinerators (Proposed Rule), 55 Fed. Reg. 17,862, 17,874 (April 27, 1990). In its response, the Region correctly notes that there is nothing to six-month period or lose business to competitors. Moreover, Chevron provides information to show that an increase in the volume of waste handled by the incinerator to 130,000 tons/year would not require any change to the facility, its equipment, or its personnel. Chevron asserts that the incinerator contains state-of-the-art technology, "is operated by highly trained personnel with the benefit of sophisticated computerized process controls and oversight, much of which has been added since the trial burn." Supplemental Filing at 2. Chevron also presents risk assessment data alleging that, contrary to the Region's assertion, a capacity limitation of 75,000 tons/year is not necessary to protect public health and the environment. 9 See generally 40 C.F.R. Part 124, Subpart A. 10 See Letter from Laurie Williams, Assistant Regional Counsel, to David R. Heckler, Assistant Judicial Officer (November 18, 1991). that requires it to choose a risk level of 10-5.11 Nevertheless, this explanation does not provide a very satisfying basis for dispensing with the issue Chevron raises. Accordingly, the Region must provide a more reasoned justification for proposing a risk level that differs from the level specified in the EPA guidance and the proposed rules. 12 Finally, the Region must reconsider its refusal to release certain information classified as confidential business information (CBI). See 40 C.F.R. §2.208 (substantive criteria for use in confidentiality determinations). PTC contends that the Region's failure to release this information denied PTC and other interested parties any meaningful opportunity to comment on the permit. In its response, the Region contends, inter alia, that once the CBI determination was made, it had no discretion to release the disputed information. The Region, however, fails to consider the "Special rules governing certain information obtained under the Solid Waste Disposal Act," 40 C.F.R. §2.305, which allow the release of CBI to the public under certain circumstances. On remand, the Region shall consider whether the special rules apply and, if so, whether the disputed information should be released to the public. The Region's determination on this issue shall constitute final Agency action. If the Region determines that the CBI was properly withheld from the public, PTC may pursue all available avenues of relief in the appropriate federal court. All other proposed grounds for review raised by the several petitioners have been considered and rejected for the reasons contained in the Region's response. Under the rules governing this proceeding, there is no appeal as of right from the Region's permit decision. Ordinarily, a RCRA permit determination will 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. See 40 C.F.R. § 124.19(a); In re Chemical Waste Management Inc., RCRA Appeal No. 87-12, at 2 (May 27, 1988); 11 The Region also notes that a risk level of 10-6 is “consistent * * * with the clean-up level sought at most Superfund Sites which are remediated pursuant to CERCLA, 42 U.S.C. §9601 et seq. and the National Contingency Plan, 40 C.F.R. § 300.430(e)(2)(i)(A)(ii).” Region's Response at 15. 12 The Board notes for the parties consideration that the four metals at issue here are listed as hazardous pollutants under section 112(b)(1) of the Clean Air Act, as amended, 42 U.S.C. §7412(b)(1). Under section 112(f)(2)(A) of the Clean Air Act, 42 U.S.C. §7412(f)(2)(A), whenever it is determined that technology-based emission standards promulgated under section 112(d) for sources of pollutants classified as known, probable, or possible carcinogens, do not reduce lifetime cancer risks to the maximum exposed individual to less than "one in one million," the Administrator is authorized to promulgate health-based standards for such sources. In re Highway 36 Land Development Co., RCRA Appeal No. 875, at 2 (September 2, 1987). The preamble to the regulations states that "this power of review should only be sparingly exercised" and that "most permit conditions should be finally determined at the Regional level ***." 45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating that review is warranted is on the Petitioners. Petitioners have failed to meet this burden with respect to the other proposed grounds for review. CONCLUSION This proceeding is remanded and the Region is directed to reopen the permit proceedings for the limited purposes mentioned above. The Region shall give public notice of this decision under 40 C.F.R. § 124.10. So ordered. IN THE MATTER OF MULTITRADE LIMITED PSD Appeal No. 92-2 ORDER DENYING REVIEW Decided April 29, 1992 Syllabus In separate petitions for review, two citizens, Margaret P. West and Dale Phillips, have challenged the decision of the Virginia Department of Air Pollution Control (VDAPC) to issue an amended prevention of significant deterioration (PSD) permit to Multitrade Limited Partnership, for construction and operation of a small woodfired power generation plant. VDAPC recently amended the permit to delete coal as a fuel option and to include a restriction preventing the facility from operating until certain specific offsets are obtained and made enforceable. Both Ms. West's petition and Mr. Phillips' petition challenged the amended permit because it does not contain a provision that was in the original version. The omitted provision required recordkeeping of wood shipments to the facility. Mr. Phillips' petition also raises the issue of whether the shut down of another company's boilers, which will provide offsets for Multitrade's emissions, will be federally enforceable. Held: Ms. West's petition for review is denied because it fails to identify any factual or legal errors or any policy considerations or exercises of discretion that warrant review. Mr. Phillips' petition is denied because it was not filed in a timely fashion and because it fails to identify any factual or legal errors or any policy considerations or exercises of discretion that warrant review. Before Environmental Appeals Judges Ronald L. McCallum, Edward E. Reich, and Timothy J. Dowling (Acting). Opinion by Judge McCallum: In separate petitions for review, two citizens, Margaret P. West and Dale Phillips, have challenged the decision of the Virginia Department of Air Pollution Control (VDAPC) to issue an amended prevention of significant deterioration (PSD) permit to Multitrade Limited Partnership, for construction and operation of a small woodfired power co-generation plant in the northern part of Pittsylvania County, Virginia. As requested by the Environmental Appeals Board, VDAPC has filed a response to the petitions. For the reasons set forth below, the petitions for review are denied. Under the rules governing this proceeding, there is no appeal as of right from the permit decision. Ordinarily, a petition for review of a PSD permit determination is not granted 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. See 40 CFR § 124.19(a). The preamble to the regulations states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional [State] level * **" 45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating that the permit conditions should be reviewed is therefore on the petitioner. In this case, the petitioners have not carried that burden. Background: An earlier version of the permit was issued on April 8, 1991. Numerous parties appealed the earlier version, and after settlement negotiations with several of the parties, Multitrade agreed to ask VDAPC to amend the permit significantly by, inter alia, deleting the use of coal as a permitted fuel. As a result of the settlement negotiations, some of the parties withdrew their petitions. With respect to the other petitions, the Administrator dismissed them without prejudice on January 21, 1992, since the issues raised in the petitions would likely become moot by reason of Multitrade's stated intention to seek substantial changes in the permit. The Administrator remanded the permit to the State for whatever proceedings it deemed appropriate in response to Multitrade's request for permit changes. Subsequently, in accordance with Multitrade's request, VDAPC amended the permit to delete coal as a fuel option and to include a restriction preventing the facility from operating until certain specific offsets are obtained and made enforceable. The amended version of the permit was issued on February 21, 1992. West Petition: Margaret West challenges the amended permit because it does not contain a provision that was in the original version. The omitted provision required recordkeeping of wood shipments.1 VDAPC represents that the provision was left out by mistake 1 The omitted provision reads as follows: The permittee shall maintain records of all wood shipments, in- Continued |