brief, Petitioners argue that the modification should be reviewed for the following four reasons: 1) the increase in the metals feed rates will result in excessive metals emissions, given TOC's excessive use of its TRS openings which bypass the air pollution control equipment; 2) TOC's claims with regard to the incinerator's destruction removal efficiency for metals based upon the test burn are not supported; 3) the Region has not given adequate consideration to the potential danger of air inversions in the area surrounding the facility; and 4) the Region did not give adequate consideration to TOC's prior compliance history. At the request of the Environmental Appeals Board, Region IV filed a response to the amended Petition for Review (Region's Response). Petitioners filed a reply to the Region's Response dated May 27, 1993 (Petitioners' Reply). In response to a request from the Board for additional record information, the Region submitted an amended response to the amended petition for review (Amended Response) dated August 13, 1993. II. DISCUSSION Under the rules governing 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 C.F.R. § 124.19; 45 Fed. Reg. 33,412 (May 19, 1980). The preamble to section 124.19 states that "this power of review should only be 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 Petitioner. See In re Allied-Signal, Inc., RCRA Appeal No. 90-27, at 3 (EAB, July 29, 1993). A. Metals Emissions Petitioners oppose any increase in the permit's allowable metals feed rates. Although it is not entirely clear from their petition for review, Petitioners appear to be making two arguments regarding metals emissions. First, petitioners contend TOC's excessive use of its facility's thermal relief stacks to bypass the air pollution control Denying Motion to Dismiss). The Board concluded that the Region's notice of the final permit decision was incomplete because it failed to include any reference to the Agency's appeal procedures as required by 40 C.F.R. § 124.15. Id. at 4. The petition for review, in which all five petitioners joined, was therefore treated as timely and the Region was ordered to renotice the issuance of the final permit decision in accordance with the requirements of 40 C.F.R. § 124.15(a). The Region reissued the final permit modification on September 23, 1992. Thereafter, petitioners submitted the amended petition for review now before the Board. system will result in excessive metals emissions, and that this will create an unreasonable risk of exposure. Thus, according to petitioners, these releases must be effectively controlled. Second, Petitioners argue that the Region erred in relying on TOC's August 1990 test burn results because they are inconsistent with the results of test burns at other facilities. Each of these arguments will be discussed in turn. 1. Thermal Relief Stack Openings Petitioners focus their objections to the revised metals feed rates on TOC's alleged overuse of its thermal relief stacks to bypass the facility's air pollution control equipment. Petitioners argue that such releases have not been adequately addressed in the modification. According to Petitioners, no increase in the allowable metals rates should be allowed until: (1) the EPA has fully evaluated thermal relief vent Amended Petition for Review, at 7. Although the Region has conceded that there have been an excessive number of TRS openings, 16 it contends that the modified permit provisions, designed to limit the number of TRS openings to no more than one per year, adequately address Petitioners' concerns. We disagree. As noted above, during the initial comment period, several commenters expressed concern regarding the number of bypass events 15 Modified Permit Condition IV.E.7.a. provides that the thermal relief stacks "shall remain closed until a minimum of four (4) seconds residence time occurs following waste feed shutoff." According to the Region, this should eliminate the threat of hazardous emissions by allowing combustion gases sufficient time to pass through the facility's air pollution control equipment before the TRS is opened. See Region's Response, at 8; Response to Comments, at 8. The Region acknowledges, however, that this conclusion is not supported by sufficient test data, and that the possibility exists that hazardous constituents can be released when a TRS is opened. Response to Comments, at 8. 16 Response to Comments, at 8-9. occurring at the facility and the possibility that significant amounts of hazardous constituents were released during these events. See Response to Comments, at 6-8. In response to these comments, as well as to an EPA/OSHA Task Force Report concluding that incinerators often use their bypass stacks in an "excessive and abusive manner to accommodate poor operations," the Region revised the draft permit modification to include provisions designed to control the number of bypass events. See Modified Permit Condition IV.E.7.; Response to Comments, at 8-9. The revised draft permit modification was then renoticed for further comment.17 Region's Response, at 5. The proposed modification requires that TOC record and maintain data on the thermal relief stacks. Modified Permit Condition IV.E.7.b. It further mandates that TOC perform a "fault tree analysis" in the event a TRS bypass event occurs more than once during a 365day period. The fault tree analysis must analyze the events leading up to a TRS opening and specify design and other changes necessary to minimize such events. Once approved by the Region, TOC must then implement these changes. Modified Permit Condition IV.E.7.c. & d. Petitioners contend that the above-noted provision in the current modification is insufficient to ensure protection of public health, and that additional design and operational changes should be added to the permit to ensure that TOC's TRS openings do not present any danger to human health or the environment. Amended Petition for Review, at 7. In response, the Region states that TOC, pursuant to Condition V.D.20.c. of the Fourth Circuit's stay order, has already submitted a report describing the design and operating changes necessary to limit the number of TRS openings to no more than one per year. Further, according to the Region, TOC has begun to implement many of these changes under an approved schedule of compliance. See Exh. 3 to Region's Response; Region's Response, at 9. More specifically, the Region states that TOC: [H]as submitted the requisite report and imple- 17 The Region states that after the modification was revised and renoticed, “[a] public meeting and hearing were then held on September 25, 1991, and November 24, 1991, respectively." Region's Response, at 5. In addition, the Region states that it considered additional comments from these two events and from an informal citizens meeting in establishing conditions in the modification. Id. at 5. The Region, however, has failed to provide the Board with a transcript of any of these meetings. baghouse, the development of new operating proce- Region's Amended Response, at 9 (footnote omitted). 18 Our review of the administrative record reveals that TOC's commitments under the Fourth Circuit's stay order are not explicitly part of the present permit modification. Thus, it is unclear whether and to what extent TOC must implement any of these changes under this permit. Moreover, it does not appear that Petitioners or other interested parties have had an opportunity to comment on the changes. Under the circumstances, the permit modification must be remanded. The manner in which a facility treats, stores, or disposes of hazardous waste is governed by the conditions specified in a properly issued permit. See RCRA §3005(a), 42 U.S.C.A. §6025(a); 40 C.F.R. $270.1. On remand, the Region must reopen the permit to include the design and operating changes the Region determines are necessary to protect human health and the environment, which we presume will include the changes approved by the Region in accordance with Condition V.D.20.c. of the Fourth Circuit's stay order. In addition, the public must be given an opportunity to submit comments on such changes before they become part of any final permit modification. 19 2. Removal Efficiency Petitioners also argue that the Region erred in setting metals emission limits based on the removal efficiency of TOC's air pollution control system. Amended Petition for Review, at 3. According to the August 1990 trial burn, the average air pollution control system removal efficiency is as follows: antimony-99.9253%, arsenic 18 The Region also indicates that TOC has already installed micro switches to detect movement of the relief vents and automatic waste feed shut off devices in compliance with the stay order. Region's Amended Response, at 9 & n.5. Although the Region states that the permit modification eliminates the chances of hazardous waste being emitted through a TRS opening by requiring that TOC maintain negative pressure in the combustion chamber (Permit Condition IV.E.4), the Region, by including additional permit conditions designed to limit the number and harmful effects of by-pass events, apparently believes that additional measures are required to protect human health and the environment. Further, the Region's suggestion that TOC must complete its obligations under Condition V.D.20. of the amended stay order, reflects its belief that additional steps are required. 19 See 40 C.F.R. §§ 124.10 & 270.41. 99.9946%, 99.9897%, barium-99.9850%, beryllium-95.8584%, cadmium mercury 96.2974%, silver-99.8967%, and thallium-99.2776%. Region's Amended Response, at 13-14. Petitioner's contend that the accuracy of the above-noted test results is "subject to grave questions" and thus the test burn does not support an increase in the metals feed rate. Id. at 5. In support of this assertion, Petitioners point to data collected from test burns at other incinerators that reflect wide variations in the removal efficiency for metals, particularly mercury. Specifically, Petitioners rely on reports from the Midwest Research Institute and the Oak Ridge National Laboratory. According to Petitioners, "[t]he Midwest Research Report mentions one incinerator was able to remove forty-nine percent (49%) of one metal. The Oak Ridge Report states that as much as fifty-three percent (53%) of a metal may be emitted into the air ***." Amended Petition for Review, at 3-4. Petitioners also cite a report entitled "Metals Partitioning from Kiln Incineration of Hazardous Waste" 20 stating that “removal of mercury at one incinerator varied at times from 58% to 99% ***." Id. at 5. In response to these comments on the draft modification, the Region stated that the Midwest Research Institute and Oak Ridge National Laboratory studies, even if accurate, are not relevant to the present proceeding. Response to Comments, at 23-24. More specifically, the Region explained that these studies show that without proper controls, metals emissions can be high and may vary widely depending on the waste feed and the efficiency of the air pollution control equipment. Id. at 24. Because these factors vary at different facilities, however, a trial burn is required for the facility to be permitted to determine the actual amount of stack emissions. In the present case, the trial burn demonstrated the ability of the incinerator to meet the permit's emissions limits while incinerating metals in the quantities listed in the modification. Data on removal efficiency rates of other incinerators with different waste feeds and/or control equipment are not relevant to this facility and are insufficient to support Petitioners' assertions regarding the results of TOC's trial burn. Similarly, the data set forth in "Metals Partitioning from Kiln Incineration in Hazardous Waste" do not support Petitioners' argument. As the Region noted in its response to the Board, that study involved a rotary kiln incinerator with different air pollution control equipment than TOC's liquid injection incinerator and thus the re 20 Exh. A to amended Petition for Review. |