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IN THE MATTER OF ATLAS ENVIRONMENTAL
SERVICES, INC., ET AL.

RCRA Appeal No. 91-18

ORDER DENYING REVIEW

Decided April 22, 1992

Syllabus

Petitioners have filed a petition for review challenging U.S. EPA Region VII's decision to issue the federal portion of a permit under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA). The permit is for a reactive waste incinerator (for disposal of explosives) and its associated storage/feed handling building in Joplin, Missouri. The petition focuses on the operating requirements for the storage/ feed handling building, which is regulated as a Miscellaneous Unit (“MU”) under Subpart X of 40 CFR Part 264. The petition asks that review be granted with respect to: (1) a typographical error in the federal portion of the permit, which references the wrong section of the state portion of the permit; (2) the alleged failure by the Region to require accurate characterization of the site's hydrologic and geologic conditions; (3) the alleged failure of the Region to require an accurate description of existing groundwater quality at the site; (4) the alleged failure of the application and the permit to acknowledge that the MU is located on property occupied by the single largest air polluter in the area, and the alleged failure of the Region to consider the impact of the facility on air quality; (5) the location of the MU near the area where waste load confirmation and analysis will take place; (6) the imminent danger to human health posed by incineration of nitroglycerin, as evidenced by the fact that the trial burn, for safety reasons, will burn only a small percentage of the explosive material that will be burned once the facility is full operational; (7) the failure of the permit to require trial runs of activities to be conducted inside the MU; and (8) "policy considerations" such as the experimental nature of the facility, the Region's lack of experience in permitting this type of facility, the permittees' lack of experience in operating this type of facility, the permittees' alleged "abysmal” environmental record, and the imminent hazard of the facility.

Held: Review is denied as to all issues raised in the petition. With respect to the typographical error, review is denied because the Region has represented that the error will be corrected through a modification of the permit. With respect to the other issues, review is denied because Petitioners have not identified any clearly erroneous factual or legal conclusions or any important policy matters that should be reviewed.

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McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion by Judge Reich:

Four citizens, Eileen Nichols, Brenda White, Linda Poe, and Jim Mueller, have filed a petition for review challenging U.S. EPA Region VII's decision to issue the federal portion of a permit under Section 3005 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. §6925, to Atlas Powder Company (Atlas), as owner, and Atlas Environmental Services, Inc. (AES), as operator.1 The permit is for a reactive waste incinerator (for disposal of explosives) and its associated storage/feed handling building in Joplin, Missouri. The federal portion of the permit (Part II) imposes corrective action requirements for the entire facility under the 1984 Hazardous and Solid Waste Amendments (HSWA) and imposes operating requirements for the storage/feed handling building under Subpart X of 40 CFR Part 264.2 The non-federal portion of the permit (Part I) was issued by the Missouri Department of Natural Resources (MDNR) and contains operating requirements for the incinerator. At the request of the Agency's Judicial Officer, the Region filed a response to the petition for review.3

Under the rules that govern this proceeding, a RCRA permit ordinarily 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 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). The preamble to the Federal Register notice in which Section 124.19 was promulgated states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level ***." Id. The burden of demonstrating that review is warranted is on the petitioners. The petitioners in this case have not carried that burden.

1AES is a wholly-owned subsidiary of Atlas.

2 While Missouri is authorized to issue RCRA permits in lieu of the Agency, it is not authorized to impose standards under Subpart X because it has not revised its RCRA program to include such standards. See 52 Fed. Reg. 46946, 46961-62 (December 10, 1987)State that is otherwise authorized to issue RCRA permits in lieu of the Agency may not impose Subpart X requirements until it revises its RCRA program to include such requirements).

3 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. Subsequently, effective on March 1, 1992, the position of Judicial Officer was abolished, and all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992).

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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
human health or the environment due to migration of waste con-
stituents in the ground water or subsurface environment, consider-
ing:

(2) The hydrologic and geologic characteristics of the unit and
the surrounding area;

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
land-use maps for the region surrounding the site that address
and ensure compliance of the unit with each factor in the environ-
mental performance standards in 40 CFR § 264.601. If the appli-
cant can demonstrate that he does not violate the environmental
performance standards of § 264.601 and the Director agrees with
such demonstration, preliminary hydrologic, geologic, and meteoro-
logic assessments will suffice.

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

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