Hazardous Waste: Issues Pertaining to an Incinerator in East Liverpool,
Ohio (Chapter Report, 09/09/94, GAO/RCED-94-101).
About five million tons of hazardous waste are incinerated each year in
the United States. About half of this is burned in 20 commercial
incinerators and 24 cement kilns that take commercial waste. Public
opposition to incineration has been strong in recent years. Some have
become skeptical about the management of commercial incinerators, the
ability of government agencies to regulate them, and whether existing
laws and regulations adequately protect public health and the
environment. A hazardous waste incinerator run in East Liverpool, Ohio
has become the focus of national attention over the process by which the
Environmental Protection Agency (EPA) approved permits for the facility.
This report examines (1) the operational control and ownership of Waste
Technologies Industries (WTI), which runs the East Liverpool
incinerator, and whether its hazardous waste permit is valid; (2)
whether EPA and the state of Ohio have complied with regulations for
approving and modifying the WTI permits; and (3) EPA's ability to ensure
that human health and the environment are protected during the operation
of the WTI incinerator.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-94-101
TITLE: Hazardous Waste: Issues Pertaining to an Incinerator in
East Liverpool, Ohio
DATE: 09/09/94
SUBJECT: Environmental monitoring
Industrial facilities
Hazardous substances
Waste disposal
Air pollution control
Compliance
Licenses
Environmental policies
Environmental law
Public relations
IDENTIFIER: East Liverpool (OH)
EPA National Pollutant Discharge Elimination System
Ohio
NPDES
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Cover
================================================================ COVER
Report to Congressional Requesters
September 1994
HAZARDOUS WASTE - ISSUES
PERTAINING TO AN INCINERATOR IN
EAST LIVERPOOL, OHIO
GAO/RCED-94-101
Hazardous Waste Incinerator in Ohio
Abbreviations
=============================================================== ABBREV
EPA - Environmental Protection Agency
GAO - General Accounting Office
NAAQS - National Ambient Air Quality Standards
NOVAA - North Ohio Valley Air Authority
NPDES - National Pollutant Discharge Elimination System
PSD - prevention of signigicant deterioration
RCRA - Resource Conservation and Recovery Act
SIP - state implementation plan
WTI - Waste Technologies Industries
Letter
=============================================================== LETTER
B-255419
September 9, 1994
Congressional Requesters
As requested, this report discusses issues pertaining to the (1)
operational control and ownership of the Waste Technologies
Industries' (WTI) hazardous waste incinerator located in East
Liverpool, Ohio; (2) the Environmental Protection Agency's (EPA)
compliance with regulations in approving and modifying the WTI
permit; and (3) EPA's ability to ensure that human health and the
environment are protected during incinerator operations. Our report
contains recommendations to EPA to change its Resource Conservation
and Recovery Act regulations to bring them in line with other federal
requirements on floodplain management and to consider additional
opportunities for public participation.
As arranged with your offices, unless you publicly announce its
contents earlier, we will make no further distribution of this report
until 2 days after the date of this letter. At that time, we will
send copies to appropriate congressional committees; the
Administrator, EPA; and the Director, Office of Management and
Budget. We will also make copies available to other interested
parties upon request.
Any questions should be directed to Bernice Steinhardt, Associate
Director, Environmental Protection Issues, (202) 512-6501. Major
contributors to this report are listed in appendix VIII.
Keith O. Fultz
Assistant Comptroller General
List of Requesters
The Honorable Albert Gore, Jr.
President of the Senate
The Honorable Robert C. Byrd
United States Senate
The Honorable John Glenn
United States Senate
The Honorable Howard M. Metzenbaum
United States Senate
The Honorable John D. Rockefeller IV
United States Senate
The Honorable Arlen Specter
United States Senate
The Honorable Harris Wofford
United States Senate
The Honorable Alan B. Mollohan
House of Representatives
The Honorable James A. Traficant, Jr.
House of Representatives
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
Annually about five million tons of hazardous waste are incinerated
in the United States. Of this amount, about half is burned in 20
commercial incinerators and 24 cement kilns that take commercial
waste. Public opposition to incineration has been strong in recent
years. Some have become skeptical about the management of commercial
incinerators, the ability of government agencies to regulate them,
and whether the existing laws and regulations are sufficient to
protect public health and the environment. One such facility, the
Waste Technologies Industries' (WTI) hazardous waste incinerator
located in East Liverpool, Ohio, has become the focus of national
attention. Concerned about the process by which the Environmental
Protection Agency (EPA) approved WTI's hazardous waste permit to
operate and about the potentially adverse impacts of the
incinerator's operation on the health of area residents, seven
Senators and two Representatives requested that GAO examine (1)
issues concerning the operational control and ownership of WTI and
whether its hazardous waste permit is valid; (2) whether EPA and, in
some cases, the state of Ohio have complied with regulations for
approving and modifying the WTI permits; and (3) EPA's ability to
ensure that human health and the environment are protected during the
operation of the WTI incinerator.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
The WTI incinerator is regulated under the Resource Conservation and
Recovery Act (RCRA), the Clean Air Act, and the Clean Water Act.
These acts help to ensure that hazardous waste facilities safely
treat, store, and dispose of such waste and limit air and water
pollution. In order to construct and operate a hazardous waste
incinerator, WTI, owned by a four-company partnership, was required
to obtain permits from both the state of Ohio and EPA. In September
1981, WTI filed applications with the state of Ohio for two permits:
a joint permit for air emissions and water discharges and a permit to
construct and operate a hazardous waste facility. Another
application was filed with EPA for a federal RCRA permit to construct
and operate a hazardous waste facility. The permits were issued by
the respective agencies during 1983 and 1984. In April 1993, the WTI
incinerator, located in a floodplain (a lowland), went into limited
operation.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
GAO concurs with EPA's conclusions that the validity of the
incinerator permit was not affected by changes in operational control
and the partners. EPA concluded that operational control of the WTI
facility changed when WTI's managing partner was assigned substantial
control over the facility. EPA modified WTI's permit to add the
managing partner as a new operator and assessed a penalty against WTI
for failing to obtain EPA's approval before the change, as required
by regulations. EPA also concluded that although the corporate
partners changed several times and all of the partners are now owned
by the same corporation, the ownership of WTI has not changed.
EPA generally followed the requirements in its regulations in
permitting the WTI incinerator. However, EPA did not, among other
things, (1) require WTI to provide an engineering analysis to show
that its proposed flood protection devices would be able to withstand
a 100-year flood and (2) conduct an alternative site analysis as
required by a federal executive order on floodplain development. GAO
believes that none of these circumstances required EPA to terminate
WTI's permit. While EPA generally followed its public participation
requirements, GAO did find opportunities, such as when a facility is
required to update its contingency plan, when additional public
participation would benefit the public and EPA.
Several planned and completed activities will help EPA to ensure that
human health and the environment are protected during WTI's
operations. As required by regulations, WTI conducted a trial burn
to determine whether the incinerator could meet performance
standards; it installed continuous monitoring equipment to monitor
operating conditions; and EPA has inspected the facility and
generally found it to be in compliance with requirements. EPA is
also conducting a two-phase assessment of the health risks that may
result from exposure to the incinerator's air emissions. As
information has become available, EPA has required WTI to change the
incinerator's operating conditions, as it did when the incinerator
failed part of its trial burn.
PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4
OPERATIONAL CONTROL AND
OWNERSHIP OF WTI
-------------------------------------------------------- Chapter 0:4.1
Since WTI received its RCRA permit in 1983, several of the companies
that made up the original WTI partnership have changed, as has the
operational responsibility for the facility. Two of the original
four corporate partners transferred their partnership interest to
affiliated corporations, one partner changed its name, and the
current WTI partners are now owned by a single corporation. In 1990,
one of those partners, Von Roll (Ohio), Inc., was, in EPA's view,
assigned operational control by the partnership. WTI did not request
or receive approval from EPA before making these permit changes.
In recent years, EPA has reviewed WTI's corporate makeup and RCRA
permit to determine whether operational control and ownership of the
facility have changed and whether the permit is still valid. EPA
determined that Von Roll (Ohio), Inc., should have been added to the
RCRA permit as an additional operator through a modification
procedure that ordinarily requires 90 days' advance notification and
EPA approval; in August 1993, EPA modified the WTI permit. GAO
concluded that EPA had the legal authority to waive its regulations
requiring 90-day advance notification and to modify WTI's permit to
add Von Roll (Ohio), Inc.
The partners in WTI have changed and the current partners are now
owned by the same corporation. The Ohio Attorney General concluded
that the ownership of WTI had changed and that WTI's failure to
revise or modify its Ohio permit violated Ohio's hazardous waste law.
EPA concluded that WTI's change in partners did not constitute an
ownership change under WTI's partnership agreement and Ohio
partnership law and that the partnership is still valid. Even though
EPA and Ohio did not agree on whether a change in ownership had
occurred, EPA stated that resolution of this issue is not necessary
for EPA to conclude that the permit is valid and enforceable. EPA
argued, and GAO agrees, that both the owners and operators and the
facility can be viewed as holding the permit and that the unapproved
transfer of ownership does not automatically terminate a permit.
EPA COMPLIED WITH MOST
PERMITTING REGULATIONS
-------------------------------------------------------- Chapter 0:4.2
Generally, EPA followed most of the applicable RCRA, Clean Air Act,
and Clean Water Act regulations in processing WTI's permit and
overseeing the issuance of state permits. EPA, however, did not
require WTI to include in its application an engineering analysis to
verify that the facility could withstand the forces of a 100-year
flood. An EPA Region V official stated that he did not require the
analysis because he believed that the erosion control information in
the application was sufficient. WTI later provided EPA with an
engineering analysis. EPA told GAO that the information provided in
the application, along with the analysis, meets the regulatory
requirements. In addition, the RCRA regulations (1) do not include
the requirement of federal Executive Order 11988 to analyze
practicable site alternatives to floodplain development and (2) are
not consistent with the guidance implementing the order, which calls
for hazardous waste activities to be protected from a 500-year flood.
Nevertheless, the WTI facility was elevated to the 500-year
floodplain level. While EPA did not follow all requirements, GAO
believes that none of these circumstances require EPA to terminate
WTI's permit. For instance, the executive order does not address the
consequences for a permittee if an agency does not follow the order's
requirements.
Although EPA generally followed its public participation
requirements, it did not always give the public an opportunity to
comment when it did not have specific regulatory guidance. For
example, the public was not given an opportunity to review and
comment on updated plans, such as the contingency plan, before the
agency approved those plans. In response to public concern, EPA is
now providing an opportunity for the public to comment on such plans.
EPA stated that better public involvement could improve the
permitting process and is considering various options for expanding
such opportunities.
ACTIVITIES TO ENSURE THAT
HUMAN HEALTH AND THE
ENVIRONMENT ARE PROTECTED
-------------------------------------------------------- Chapter 0:4.3
RCRA and its regulations are intended to ensure that hazardous waste
incineration protects human health and the environment. EPA has
established performance standards that WTI must meet when burning
hazardous wastes and has required the WTI facility to conduct a test,
called a trial burn, to make sure that it could meet those standards
before beginning limited or full-scale operations. It also has
required WTI to install and operate equipment to continuously monitor
operating conditions and to report on its compliance. Ohio EPA has
an inspector dedicated full time to the WTI site, and EPA
periodically inspects the facility for program compliance.
Because of community concerns, EPA has gone beyond program
requirements and is conducting a two-phase health risk assessment.
It also has required WTI to carry out additional activities, such as
testing for dangerous metals and dioxins during the trial burn, that
are not currently required by RCRA and Clean Air Act regulations and
that are intended to further protect human health and the environment
in the area. As information from these activities becomes available,
EPA can modify or stop the incinerator's operations. Thus far, EPA
has directed WTI to change the operating conditions on the basis of
trial burn results.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5
GAO recommends that the EPA Administrator amend the RCRA regulations
to incorporate the alternative site analysis requirement of Executive
Order 11988 and require that the 500-year floodplain be used. To
ensure that maximum opportunities for public participation are
provided, GAO further recommends that the EPA Administrator establish
guidance on the conditions or circumstances for which opportunities
for public participation should be provided beyond the present
regulatory requirements.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6
EPA, Ohio EPA, the Ohio Department of Health, the Attorney General of
Ohio, and WTI provided comments on a draft of this report. EPA said
that the report is a balanced and fair assessment of the activities
undertaken in connection with the WTI facility. Ohio EPA offered
technical corrections and clarifying information for the report, as
did the Ohio Department of Health. The Attorney General of Ohio
agreed that the excerpts from the report he had been given are
basically accurate. In addition to providing several corrections or
clarifying points, WTI observed that it found it difficult to comment
on just those portions of the report that GAO provided to the
company; it also believes that many of the issues discussed in the
report are insignificant. GAO believes that the issues addressed in
the report are relevant to the key issues that have been raised about
governmental approval of the WTI incinerator. GAO incorporated
technical corrections and clarifying information into the report as
appropriate. The full text of the respondents' comments and GAO's
evaluation of them are provided in appendixes III, IV, V, VI, and
VII.
INTRODUCTION
============================================================ Chapter 1
Five million tons of hazardous waste are incinerated in the United
States annually. Of this amount, about half is burned in 20
commercial hazardous waste incinerators and 24 cement kilns that take
commercial wastes. Incineration offers certain advantages over land
disposal and deep-well injection, the more traditional methods of
hazardous waste disposal. However, public opposition to the use of
incineration has been strong in recent years, as some members of the
public have become skeptical about the management of these
facilities, the ability of government agencies to regulate them, and
whether laws, regulations, and standards are sufficient to protect
public health and the environment.
One of the 20 commercial incinerators is the Waste Technologies
Industries' (WTI) facility located in East Liverpool, Ohio. Plans to
build the incinerator began in the early 1980s. The incinerator
conducted a trial burn in 1993 and has been operating on a limited
basis since April 1993. During the last few years, however, it has
become the focus of national attention as its critics have argued
that it is an unsafe facility that poses a hazard to public health
and the environment.
ORIGIN OF THE WTI INCINERATOR;
OPPONENTS' AND PROPONENTS'
VIEWS
---------------------------------------------------------- Chapter 1:1
In 1981, four corporations formed the partnership known as WTI to
build and operate a hazardous waste incineration system, including
two rotary kiln incinerators. In part, WTI chose to build the
incinerators in East Liverpool because of its convenience to steel
mills, chemical plants, and other industries generating waste
suitable for disposal at the type of facility proposed by WTI. When
fully operational, the first incinerator, built between 1990 and
1992, will destroy approximately 60,000 tons of hazardous wastes
annually. WTI has not announced a specific date for the construction
of the second incinerator. The facility is situated on about 22
acres of land that was formerly part of the Columbiana County Port
Authority's property in East Liverpool. The site of the WTI facility
is zoned for general industrial activities. Fig. 1.1 is an aerial
photograph of the area.
Figure 1.1: Aerial Photograph
of WTI Facility and Surrounding
Area
(See figure in printed
edition.)
WTI is permitted to receive a variety of regulated hazardous wastes
from customers such as chemical, rubber, paint, and manufacturing
plants; refineries; and pharmaceutical laboratories. These wastes
include oils; organic (contains carbon) solvents, liquids, sludges,
and solids; paint residues; wax; grease; inorganic solids; water
solutions; and dirt. Some wastes, such as PCB liquids, radioactive
wastes, and dioxin wastes, are not allowed to be incinerated at the
WTI facility.
In order to construct and operate its hazardous waste incinerator,
WTI was required to obtain permits from both the state of Ohio, which
had been authorized to administer the federal air and water discharge
programs, and from the U.S. Environmental Protection Agency (EPA).
Consequently, in September 1981 WTI filed applications for two Ohio
permits--an air permit-to-install and a water permit (which are
considered one permit since they are part of the same document) and a
hazardous waste facility permit--and an EPA permit to construct and
operate a hazardous waste facility under the Resource Conservation
and Recovery Act (RCRA) of 1976, as amended. WTI applied to EPA for
the permit because at that time EPA had not yet authorized the state
of Ohio to administer the RCRA program. Therefore, it was necessary
for WTI to have both a federal RCRA permit subject to EPA's oversight
and a state hazardous waste permit. The EPA permit and the state
permits were all issued during 1983 and 1984. In June 1989, EPA
authorized the state of Ohio to administer the RCRA program.\1 As a
result of this authorization, if WTI submits a timely and complete
RCRA application to Ohio before its federal permit expires in 1995,
WTI will continue to operate under the federal permit until a new
RCRA permit is issued or denied by Ohio EPA. In 1992, Ohio EPA
issued WTI an air permit-to-operate the incinerator. Ohio EPA
oversees WTI's compliance with the state permits.
--------------------
\1 RCRA gives states the option of developing and administering their
own hazardous waste programs in place of the federal program that EPA
administers. To gain approval, a state program must be consistent
with and equivalent to the federal RCRA program and at least as
stringent.
OPPOSITION TO WTI'S
INCINERATOR PRIMARILY BASED
ON CONCERNS ABOUT HEALTH AND
ENVIRONMENTAL EFFECTS
-------------------------------------------------------- Chapter 1:1.1
Although local opposition to build the WTI incinerator in East
Liverpool began in the early 1980s, during the past few years it has
become part of a national debate on the need for and protection from
hazardous waste incineration. Some East Liverpool residents and
others opposing the incinerator see it as an unsafe facility that
adds pollution to an already polluted community and is a liability
and financial burden to the community. Over the past 12 years, the
opponents have voiced concerns about the unsuitability of the site;
adverse environmental and health impacts; hazardous material spills
in storing and handling; the trustworthiness of the owner and
operator; and the absence of sufficiently stringent operating
conditions, standards, and enforcement. For example, concerns were
expressed early on about the health effects of the facility because
it is located about 1,100 feet from a school, 300 feet from some
homes, and on the bank of the Ohio River. Noting that while the RCRA
regulations focused on controlling or reducing general particulate
emissions, hydrogen chloride, and certain organic compounds,
community members claim that relatively little attention is being
given to the wide variety of heavy metals, such as lead and mercury,
many of which are often toxic, are present in hazardous waste
streams, and are not destroyed during incineration. In addition, the
residents of East Liverpool and neighboring communities in West
Virginia and Pennsylvania fear that dioxin, a possible human
carcinogen, may form and be released into the environment during the
burning of hazardous waste at WTI.
Because of the concerns about the incinerator, WTI's permits have
been challenged in both state and federal courts. In Ohio, facility
opponents appealed the Hazardous Waste Facility Approval Board's
decision to issue WTI's permit on the grounds that, among other
things, WTI had not shown that the facility represents the minimum
adverse environmental impact as required by Ohio law; it failed to
consider alternative sites; and it did not represent the minimum risk
of groundwater and surface water contamination, fire, explosions, and
transportation accidents. The Ohio Court of Appeals affirmed the
Board's decision, which was subsequently upheld by the Ohio Supreme
Court. (West Virginia v. Ohio Hazardous Waste Facility Approval
Bd., 28 Ohio St. 3d 83, 502 N.E.2d 625 (1986).)
Likewise, WTI's federal permit also has been challenged. In April
1992, the Attorney General of West Virginia, on behalf of the
citizens of West Virginia, and the City of Chester, West Virginia,
brought suit in the U.S. District Court for the Northern District of
West Virginia, challenging the validity of WTI's federal hazardous
waste permit on the grounds that, among other things, the incinerator
was being constructed and would be operated without properly issued
permits, the permits were unlawfully transferred in violation of
federal and state law, changes in operator occurred without proper
authorization, and the landowner did not sign the RCRA permit. In
November 1992, the district court denied the plaintiffs' motion for a
court order to stop WTI from operating. In March 1993, the U.S.
Court of Appeals for the Fourth Circuit held that the district court
had no jurisdiction to hear what amounted to an appeal of a RCRA
permit. Appeals of EPA's permit decisions must be filed in federal
circuit court within 90 days after EPA's decision. The court ordered
the case to be dismissed. (Palumbo v. Waste Technologies
Industries, 989 F.2d 156 (4th Cir. 1993).)
In January 1993, Greenpeace and 12 residents of East Liverpool, Ohio,
filed a complaint and a motion for injunctive relief in the U.S.
District Court for the Northern District of Ohio. The suit alleged,
among other things, that operation of the facility would pose an
imminent and substantial endangerment to public health and the
environment through indirect exposure to dioxin emissions. In March
1993, the district court found in favor of the plaintiffs and issued
an order barring the limited operation of the facility during the
post-trial-burn period. Later in March, the U.S. Court of Appeals
for the Sixth Circuit suspended the order while it considered the
case, allowing WTI to start limited commercial operation. In
November 1993, the Sixth Circuit Court of Appeals reversed the
district court's order and ordered the case to be dismissed, holding
that the district court did not have jurisdiction for the same
reasons as the fourth circuit in the Palumbo case. (Greenpeace, Inc.
v. Waste Technologies Industries, 3 F.3d 1174 (6th Cir. 1993).)
In addition, two lawsuits challenging EPA's decision to allow WTI to
begin limited commercial operation have been consolidated and
currently are pending in the U.S. Court of Appeals for the District
of Columbia Circuit.
WTI SUPPORTERS SEE ECONOMIC
BENEFITS
-------------------------------------------------------- Chapter 1:1.2
Other local citizens favor and support the operation of the WTI
facility in East Liverpool. They believe that it represents the
state-of-the-art in technological design and operation and
environmental safety for WTI's workers and local citizens. These
citizens believe that the facility has been thoroughly reviewed and
approved by state and federal regulatory agencies and meets or
exceeds all standards for safe operation. In addition, proponents of
the incinerator state that the facility will provide a great economic
boost to the East Liverpool area by adding new jobs and increasing
tax revenues.
According to WTI, over 500 workers from a variety of companies based
in Ohio, Pennsylvania, and West Virginia were employed in the
construction of the $165 million incinerator. As of May 1994, WTI
employs 156 permanent workers and has a $5.2 million annual payroll.
Half of those employees live within Columbiana County, where WTI is
located. WTI also indicated that approximately 20 percent of its
1,300 suppliers are based in East Liverpool and neighboring Ohio
towns and that another 63 percent come from other cities in Ohio,
Pennsylvania, and West Virginia. From January through March 1994,
WTI stated that it has purchased approximately $42.5 million in goods
and services from all vendors (at least $9.2 million was spent in
East Liverpool).
From January 1992 through March 1994, according to WTI, it paid the
city of East Liverpool, Columbiana County, and the states of Ohio,
Pennsylvania, and West Virginia approximately $1.9 million in various
taxes. Also during this period, the state of Ohio received $78,934
in fees for permitting and waste treatment. In addition, city and
WTI officials said that East Liverpool has a nonbinding agreement
with WTI to receive an estimated $600,000 annually on the basis of
tons of waste incinerated ($10/ton based on 60,000 tons of waste).
WTI has also said that it will provide an annual contribution of
$1/ton of waste incinerated to the East Liverpool hospital. As of
March 1994, WTI had contributed $12,546 to the hospital. WTI
advanced East Liverpool $200,000 for the purchase of hazardous
materials response equipment to be used by the city's fire
department. This amount is to be deducted from the $600,000 expected
to be paid to East Liverpool.
In terms of added cost, East Liverpool officials indicated that
additional costs to East Liverpool for WTI's operations include
$34,000 in overtime paid to the police department to control
demonstrations by opponents of the facility. The city also had to
reopen the East End Fire Station, requiring $49,000 annually to
employ two firemen. A new fire truck for this station cost the city
$115,000.
EVOLUTION OF HAZARDOUS WASTE
INCINERATORS' REGULATIONS,
STANDARDS, AND TECHNOLOGIES
---------------------------------------------------------- Chapter 1:2
Under the current permitting arrangement, the WTI incinerator is
regulated under RCRA, the Clean Air Act, and the Clean Water Act.\2
Since the enactment of these laws, revisions to the acts and
additional regulatory requirements and guidance have been established
to better protect public health and the environment. Although EPA
administers these three acts, it can authorize states whose programs
meet or exceed EPA's standards to carry out state programs in place
of the federal program.
RCRA, enacted in 1976, and the Clean Air Act, enacted in 1970, have
the primary objectives of protecting public health and the
environment. Between the time that WTI applied for a permit in 1981
and today, many RCRA and Clean Air Act requirements have been revised
and expanded through amendments to RCRA in 1984 and to the Clean Air
Act in 1990. In addition, EPA has issued new regulations, guidance
documents, and policy to reflect improved management systems, new
listings of hazardous waste, more stringent performance standards and
operating conditions, and additional permit requirements.
In recent years, technological advances and improvements in
incinerator design, including the use of multiple combustion chambers
and air pollution control equipment, have contributed to reducing the
amount of pollution emitted from incinerator stacks. Other
technological improvements in equipment, such as continuous emissions
monitoring equipment, used for monitoring stack emissions, have
provided more accurate data for the regulatory agencies to change an
incinerator's operating conditions. In addition, incinerators have
been required to use continuous monitoring equipment in the stack or
ducts that automatically shuts off the incinerator's waste feed when
certain operating conditions are not being met.
--------------------
\2 See appendix I for a discussion of the major laws and key
regulations on hazardous waste incineration.
EPA'S CURRENT PROGRAM
INITIATIVES
---------------------------------------------------------- Chapter 1:3
In May 1993, the EPA Administrator announced a Draft Hazardous Waste
Minimization and Combustion Strategy. The strategy is to reduce the
amount of hazardous waste produced in this country and strengthen
controls governing hazardous waste incinerators and industrial
furnaces, including a regulatory initiative to reduce the risk posed
by air emissions from hazardous waste incinerators. In August 1993,
EPA identified several ongoing major projects that it has undertaken
to address the strategy's goals. The projects include assessing the
technical standards, public involvement, permitting rulemaking, and
risk assessment associated with hazardous waste combustion, including
incineration. Issues being assessed include determining whether a
need exists for (1) direct and indirect exposure risk assessments
during the permitting process, (2) adding to new permits more
stringent controls for emissions of particulate matter and heavy
metals, and (3) public participation in the permitting process at an
earlier stage than is currently done. Proposed rulemaking and
updated guidance reflecting changes in these areas are planned for
fiscal years 1994 and 1995.
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:4
In a letter dated December 7, 1992, then Senator Al Gore, Senators
Howard Metzenbaum, Arlen Specter, Robert Byrd, Jay Rockefeller,
Harris Wofford, and John Glenn and Representative Alan Mollohan
requested that we examine a number of questions concerning the WTI
facility, the validity of its permit, and its health and
environmental effects. Subsequently, Representative James Traficant
joined the request. In discussions with the requesters' staffs, we
agreed to focus specifically on (1) issues concerning the operational
control and ownership of WTI and whether its hazardous waste permit
is valid; (2) whether EPA and, in some cases, the state of Ohio have
complied with regulations for approving and modifying the WTI
permits; and (3) EPA's ability to ensure that human health and the
environment are protected during the operation of WTI.
While the scope of our review generally encompassed just WTI, in the
course of doing our work we sometimes were able to identify and
address broader systemic problems in EPA's regulatory process.
Likewise, we generally limited our scope to issues surrounding the
approval and issuance of WTI's federal RCRA permit and EPA's
oversight of the state of Ohio's issuance and enforcement of WTI's
air and water discharge permits. Ohio's hazardous waste permit
actions generally were not a subject of this review. However, we did
look at the state of Ohio's role and actions in considering the
effects of WTI's construction on existing site contamination.
To address our first objective, we interviewed officials and obtained
documentation on WTI's ownership and operational control from EPA
Region V, which is the cognizant region for facilities in Ohio and is
located in Chicago, Illinois; officials from the Ohio Attorney
General's office, EPA, and the Hazardous Waste Facilities Board,\3
all in Columbus, Ohio; citizens groups from East Liverpool and the
surrounding area; the Solicitor for the City of Pittsburgh; and
counsel for WTI. We also reviewed an EPA Inspector General's report
on WTI and reviewed and analyzed EPA's regulations and federal and
state court opinions.
To address our second objective, we interviewed officials and
obtained documentation on the regulatory agencies' permit approval
and implementation processes from EPA Region V and EPA headquarters
in Washington, D.C.; the Federal Emergency Management Agency; and
Ohio's EPA, Hazardous Waste Facilities Board, and Department of
Industrial Relations. We also reviewed and analyzed EPA's
regulations, the Environmental Appeals Board's decisions, and federal
court opinions.
In addition, we obtained information on public perceptions about
WTI's operations and issues pertaining to the regulatory agencies'
practices and procedures in permitting WTI from the Mayor and a
number of citizens of East Liverpool, citizens groups'
representatives, an Assistant Solicitor for the City of Pittsburgh,
Greenpeace representatives, and WTI officials.
To achieve our third objective, we interviewed officials and obtained
documentation on trial burn results, health risk assessments, local
baseline health studies, and regulatory agencies' monitoring and
inspection and enforcement programs from EPA Region V, EPA's Research
and Development Laboratory in Cincinnati, Ohio, and EPA headquarters;
Ohio's EPA, Department of Health, and Hazardous Waste Facilities
Board; the East Liverpool Health Department and citizens groups; the
North Ohio Valley Air Authority; and WTI.
We conducted most of our audit work between March and December 1993
in accordance with generally accepted government auditing standards.
In selected cases, we updated our information through July 1994. EPA
provided written comments on a draft of this report, which are
included in appendix III. Written comments were also received from
Ohio EPA, Ohio Department of Health, the Attorney General of Ohio,
and WTI on excerpts from the report that were pertinent to them.
Their comments are included in appendixes IV, V, VI, and VII,
respectively; GAO's comments appear at the end of each appendix.
Also, their comments were incorporated into the report as
appropriate.
--------------------
\3 At the time WTI was issued its state permit, the Board was called
the Hazardous Waste Facilities Approval Board.
ISSUES ABOUT CHANGES IN
OPERATIONAL CONTROL AND OWNERSHIP
DO NOT ALTER VALIDITY OR
ENFORCEABILITY OF WTI'S PERMIT
============================================================ Chapter 2
Various changes in WTI's partners and a contract between one partner
and the WTI partnership have led EPA, WTI opponents, and others to
raise questions about whether the operational control and ownership
of WTI has legally changed, without a required modification of WTI's
RCRA permit. Opponents also have questioned whether, as a result of
these changes, WTI's RCRA permit is valid.
EPA concluded that the operational control of the incinerator changed
when WTI made one of its partners the managing partner and later
entered into an operating contract with that partner. EPA required
WTI to modify its permit to add the partner as an additional operator
and imposed a $64,900 penalty for WTI's failure to notify EPA in
advance of the operational control change.
In connection with the change in ownership issues, EPA concluded that
the facility had not been transferred to a new owner. EPA also
concluded, and we agree, that even if the ownership had changed,
WTI's permit is valid and enforceable because a permit is issued to a
facility as well as to an owner.
BACKGROUND
---------------------------------------------------------- Chapter 2:1
In 1981, four corporations formed the partnership known as Waste
Technologies Industries, or WTI. These corporations, Koppers
Environmental Corporation, Energy Technology Company, Waste
Technologies, Incorporated, and Von Roll America, Inc., were owned,
respectively, by Koppers Company, Inc., Mustang Fuel Corporation,
Stephens, Inc., and Von Roll, AG.\1
Since 1981, various changes have occurred among the partners.\2
In 1986, two of the original partners transferred their partnership
interests to affiliated corporations, and one of these corporations
later changed its name. Specifically, Von Roll America, Inc.,
transferred its partnership interest to its newly created subsidiary
Von Roll (Ohio), Inc. Waste Technologies, Incorporated (with a
comma), transferred its partnership interest to sister corporation
WTI Acquisition, Inc., which changed its name to Waste Technologies
Incorporated (without a comma). One of the remaining original
partners (Koppers) also changed its name (to Environmental Elements
Ohio (Inc.)).\3
The four current partners are Von Roll (Ohio), Inc., Energy
Technology Company, Waste Technologies Incorporated, and
Environmental Elements Ohio (Inc.). In addition, all of the partners
are now owned by the same parent corporation, Von Roll America, Inc.
Finally, in a 1987 amendment to WTI's Joint Venture Agreement, Von
Roll (Ohio), Inc., became the managing partner of WTI. Also, in 1990
Von Roll (Ohio), Inc., entered into an operating contract with WTI,
which EPA determined assigned substantial independent operational
control of the facility to Von Roll (Ohio), Inc.
--------------------
\1 Von Roll, AG is a Swiss company. "AG" is an abbreviation for a
German word denoting a business entity similar to a corporation. Von
Roll, AG is also known as Von Roll, Ltd. and Von Roll Ltd.
\2 A June 1993 investigative report prepared by the Ohio Attorney
General details the evolution of WTI's structure since 1981. The
changes of most concern have occurred since 1986.
\3 The spelling and punctuation of many of the companies discussed in
this report are inconsistent in various documents. In his
investigative report on WTI, the Ohio Attorney General generally used
the actual name under which a given company was incorporated. In
addition, the Attorney General investigated the discrepancies in
spelling and punctuation of the corporate names. This report uses
the spelling accepted by the Attorney General as the correct names
for the corporations.
EFFECTS OF CHANGE IN
OPERATIONAL CONTROL
---------------------------------------------------------- Chapter 2:2
WTI's original RCRA permit application listed Waste Technologies
Industries as the operator of the facility. However, at a May 7,
1992, hearing, EPA learned that WTI and one of its partners, Von Roll
(Ohio), Inc., had entered into a contract on September 21, 1990,
which EPA determined assigned substantial independent operational
control of the incinerator to Von Roll (Ohio), Inc. Additionally, a
1987 amendment to the WTI Joint Venture Agreement had earlier made
Von Roll (Ohio), Inc., the managing partner, replacing a management
committee that had exclusive authority to manage and control
activities related to constructing, owning, and operating the
facility. Also, Von Roll (Ohio), Inc., obtained the letter of credit
for facility closure,\4
which is a responsibility of the facility owner or operator.
EPA's position is that, under this arrangement, Von Roll (Ohio),
Inc., is an additional operator of the facility within the meaning of
RCRA and that the arrangement should have been effected through a
permit modification with prior EPA approval.
WTI submitted a modification request to EPA on June 18, 1992, and a
revised, unsigned permit application to EPA on August 25, 1992. On
September 30, 1992, EPA notified WTI that it was processing the
modification request as a Class 1 modification--in this case
requiring a 90-day prior notification and EPA approval--and requested
a signed copy of the revised permit application. In a letter to EPA
Region V, dated November 2, 1992, counsel for WTI enclosed a signed
revised permit application that identified Von Roll (Ohio), Inc., as
an additional operator. However, the letter expressed WTI's
disagreement with EPA's position that Von Roll (Ohio), Inc., is an
operator as that term is used in RCRA. WTI argued that because the
facility had not yet accepted hazardous waste, the facility did not
yet have an operator. Also, according to WTI, Von Roll (Ohio),
Inc.'s obligation under the contract to operate the facility did not
begin until the trial burn was concluded. WTI also has argued that
because WTI maintains complete control over the facility and Von Roll
(Ohio), Inc., is the managing partner of WTI, the contract did not
represent a change in operational control. In addition, WTI, in its
comments on this draft, stated that the letter of credit was obtained
by Von Roll (Ohio), Inc., as managing partner of WTI on behalf of the
partnership, and not by Von Roll (Ohio), Inc., on its own.
As a Class 1 modification, changes in operational control under RCRA
regulations require advance notification and EPA approval but do not
require a public comment period. However, because WTI failed to
notify EPA 90 days before naming Von Roll (Ohio), Inc., as an
operator, and because EPA believed that public involvement was
warranted, EPA initiated a 30-day public comment period on WTI's
request for the change. Although the revised permit application that
EPA initially received from WTI was unsigned, EPA proceeded to take
comments on the proposed modification. EPA accepted comments from
October 2, 1992, through November 2, 1992.
On August 24, 1993, EPA modified the WTI permit to add Von Roll
(Ohio), Inc., as an additional operator. EPA also issued a civil
administrative complaint against WTI, in which the agency is seeking
penalties of $64,900 from WTI for its failure to notify the agency
prior to the change and obtain a permit modification to name Von Roll
(Ohio), Inc., as an additional operator of the facility.
Incinerator opponents have argued that EPA had no authority to modify
the permit to add Von Roll (Ohio), Inc., as an operator after the
change in operational control had taken effect. They also stated
that WTI can never comply with the required 90-day notice for Class 1
modifications, since the actual change in operational control took
place in 1990. They contend that because Von Roll (Ohio), Inc., and
WTI have violated RCRA regulations, revocation of the permit and
reapplication by the current owners and operators is the only
appropriate course for EPA to pursue.
EPA views WTI's failure to obtain prior approval of its operator
change as a violation of its regulations implementing RCRA and, as
noted above, has taken enforcement action against WTI for adding Von
Roll (Ohio), Inc., as an operator without prior approval. In its
Response to Comments, dated August 24, 1993, EPA stated that it had
authority to modify WTI's permit to add Von Roll (Ohio), Inc., as an
additional operator. EPA stated that when a facility makes a change
without prior approval, EPA is not forever precluded from processing
a late-filed modification request to make the permit conform to the
changed circumstances. The agency stated that the 90-day prior
notification requirements of the regulations are primarily procedural
requirements designed to ensure sufficient time for EPA to evaluate
proposed changes before they occur. Finally, EPA stated that it does
not interpret its regulations as compelling the agency to initiate a
revocation and reissuance of the entire permit.
--------------------
\4 Closure refers to the period during which an owner and operator of
a hazardous waste facility stops using and actually closes the
facility. EPA requires the owner or operator to submit for approval
a closure plan that describes how the facility will be closed and the
schedule for completion. The owner or operator is required to
demonstrate adequate financial resources to carry out the closure.
To demonstrate adequate resources to cover closure costs, financial
assurance may be provided through various mechanisms such as a trust
fund, letter of credit, surety bond, insurance, or financial test.
GAO'S ANALYSIS
-------------------------------------------------------- Chapter 2:2.1
The change in operational control without prior authorization
presents two issues. The first issue is whether EPA may waive its
90-day advance notification requirement to add an operator to the
permit. The second issue presented by the change in operational
control without EPA's prior approval is the appropriate enforcement
action that EPA may take.
Under RCRA regulations, only two ways exist to effect a change in
operational control: modify an existing permit or revoke and reissue
it. As discussed above, opponents of the incinerator claim that
because WTI did not give EPA prior notice of the transfer, EPA may
not now modify the permit to add Von Roll (Ohio), Inc., as an
operator. Rather, they claim, EPA legally is obligated to revoke and
reissue the permit. However, the regulation governing revocation and
reissuance also requires advance notification. Thus, under a literal
reading of the regulations, EPA could neither modify nor revoke and
reissue the permit, because advance notification, required under both
procedures, had not been given. Nonetheless, EPA did modify the
permit, using a Class 1 modification that was "enhanced" with a
formal comment period.
In modifying the permit, EPA, in effect, waived its own procedural
regulations. The issue raised is whether this action is within EPA's
legal authority. We believe that it is.
The Supreme Court has held that it is within the discretion of an
administrative agency to relax or modify procedural rules that the
agency has adopted for the orderly transaction of the business before
it. (American Farm Lines v. Black Ball Freight Service, 397 U.S.
532 (1970).) Under Black Ball Freight, the determination of whether
an agency is entitled to waive adherence to its own regulations turns
on whether the regulations were intended to confer important
procedural benefits upon the parties before the agency or whether
they are merely procedural rules for the orderly transaction of the
agency's business.
EPA states that the 90-day prior notification requirement of its
regulations is primarily a procedural requirement designed to ensure
sufficient time for it to evaluate proposed changes in ownership or
operational control before they occur. Therefore, EPA had
discretionary authority to waive the requirement. We agree.The
requirement does not confer procedural benefits on
individuals--incinerator opponents, for example--since the
regulations do not provide for public notice or comment during the
90-day period. The period during which the public has an opportunity
to comment on the change starts to run after EPA approves the change.
After EPA's approval, the public has an opportunity to request that
EPA review and reject the change. In this case, EPA's late
modification procedure provided an additional comment period before
EPA made its final decision to approve the modification. Thus, the
modification procedure EPA adopted conferred procedural benefits that
the public would not ordinarily have had.
The second issue concerns the enforcement actions that EPA may, or
must, take if an unapproved transfer occurs. One possible
enforcement action available to EPA is the imposition of a penalty.\5
Another enforcement action is permit termination.
Under RCRA and EPA's regulations, when EPA determines that a person
is in violation of a requirement of RCRA, EPA's regulations, or a
permit, EPA may issue an order assessing a civil penalty of up to
$25,000 per day for each violation. In assessing the penalty, EPA
must take into account the seriousness of the violation and any good
faith efforts to comply with applicable requirements.
Under EPA's regulations, the grounds for terminating a permit include
noncompliance by the permittee with any condition of the permit. The
transfer of a permit without advance notice to EPA violates a permit
condition.\6 Thus, the grounds for terminating WTI's permit or
imposing a penalty were present, and EPA could have taken either
action or both. In addition, EPA could have decided to take neither
action. An agency's decisions on enforcement actions are generally
within that agency's discretion. (Heckler v. Chaney, 470 U.S. 821
(1985).) In this case, EPA chose to impose a penalty of $64,900 on
WTI for its failure to notify EPA in advance of adding Von Roll
(Ohio), Inc., as an operator. In our view, this choice was within
EPA's discretion.
--------------------
\5 RCRA also authorizes EPA to issue an order requiring compliance
with the provisions of RCRA. If a violator fails to take corrective
action within the time specified in a compliance order, EPA may
assess a civil penalty for noncompliance with the order and suspend
or revoke any permit issued to the violator. In certain cases, EPA
may seek criminal penalties for violations of RCRA.
\6 A standard condition of a RCRA permit states that: "This permit
is not transferable to any person except after notice to [EPA]." 40
C.F.R. 270.30(l)(3).
EFFECT OF POSSIBLE CHANGES IN
OWNERSHIP
---------------------------------------------------------- Chapter 2:3
Under RCRA, any person who owns or operates a hazardous waste
facility must obtain a permit. RCRA defines "person" to include a
partnership. However, EPA's regulations do not require each partner
to be named on the permit. Thus, EPA issued the hazardous waste
permit to the partnership entity known as Waste Technologies
Industries. The individual partners were not named on the permit.
RCRA regulations state that a facility may be transferred to a new
owner only if the permit has been modified, or revoked and reissued,
to identify the new permittee. The regulations do not provide
guidance on when changes in a partnership require a permit to be
modified. A change in ownership, like a change in operational
control, may be made as a Class 1 modification with prior written
approval of EPA.
EPA, the Ohio Attorney General, counsel for WTI, and others have
turned to Ohio partnership law to determine whether the WTI facility
was transferred to a new owner. EPA stated that while the
requirements of RCRA would be fully enforceable against WTI in any
event as de facto owner and operator of the facility, it was
desirable from a practical and evidentiary standpoint to have the
technically correct legal entity on the permit.
Specifically, the issues relating to ownership are (1) whether the
change in partners has caused a dissolution of the partnership and
(2) whether Von Roll America, Inc.'s ownership of the four partners
has caused the partnership to merge into a single owner. After
addressing these issues, EPA concluded that no legal change in the
partnership had occurred, and the Ohio Attorney General concluded
that under Ohio partnership law, the partnership had dissolved.
These conclusions, however, are distinct from the issue of whether
the WTI permit is valid. EPA concluded that, even assuming the Ohio
Attorney General's conclusions concerning Ohio partnership law and
ownership of the facility are correct, WTI's permit remains valid and
enforceable because a permit is issued to a facility as well as to an
owner. Furthermore, an unauthorized transfer of ownership is not
grounds for automatic termination.
DISSOLUTION OF PARTNERSHIP
-------------------------------------------------------- Chapter 2:3.1
The principal issue of whether the WTI partnership has legally
changed centers on the concept of "dissolution." Dissolution is a
technical term in partnership law concerning the legal identity of a
partnership and the authority, rights, and liabilities of the
partners. It is defined as "the change in the relation of the
partners caused by any partner ceasing to be associated in the
carrying on as distinguished from the winding up of the business."
For example, a partnership may be dissolved when a partner dies or
withdraws from the partnership.\7
--------------------
\7 Upon dissolution, the partnership is not terminated but continues
until the winding up of partnership affairs is completed. After
dissolution of a partnership, the partners may continue the business
of the partnership.
DISSOLUTION UNDER WTI'S
JOINT VENTURE AGREEMENT
------------------------------------------------------ Chapter 2:3.1.1
The terms of the WTI partnership are spelled out in a document
entitled "Joint Venture Agreement of Waste Technologies Industries,"
dated June 26, 1981. Several provisions in the Joint Venture
Agreement are relevant to the issue of whether WTI dissolved when the
partners changed.
The Joint Venture Agreement lists four grounds for dissolution of the
WTI partnership: notice of termination signed by all partners;
withdrawal of all partners; incorporation of the partnership; and
bankruptcy. A change in partners is not among the grounds specified
for dissolution in the agreement. The agreement also provides that
the partnership shall exist until its dissolution by one of the four
factors. Furthermore, the agreement provides that if a partner
transfers a partnership interest to an affiliated corporation, the
original partner remains liable for all obligations incurred by the
partner before the transfer and for all obligations incurred by any
assignee after the transfer.
DISSOLUTION UNDER OHIO
LAW
------------------------------------------------------ Chapter 2:3.1.2
Ohio has adopted a version of the Uniform Partnership Act, a statute
governing partnerships, as chapter 1775 of the Ohio Revised Code.
The Ohio Revised Code sec. 1775.28 defines dissolution as "the
change in the relation of the partners caused by the partner's
ceasing to be associated in the carrying on as distinguished from the
winding up of the business." Some states' versions of the Uniform
Partnership Act specifically provide that a written partnership
agreement may prevent dissolution upon a change in partners (for
example, Cal. Corp. Code sec. 15031).
No specific statutory provision in Ohio addresses whether a
partnership agreement may prevent dissolution upon a change in
partners. Therefore, EPA, the Ohio Attorney General, counsel for
WTI, and others have reviewed case law to determine whether an Ohio
court would give weight to such a provision in a partnership
agreement, and they have reached different conclusions. One case in
particular, decided by a federal district court in Ohio, has been
cited by incinerator opponents and the Ohio Attorney General to
support the view that the partnership was dissolved, notwithstanding
any agreement to the contrary in the partnership agreement.
The case in question is Fairway Development Co. v. Title Insurance
Co., 621 F. Supp. 120 (N.D. Ohio, 1985). Fairway has been cited
by the Ohio Attorney General and others as standing for the
proposition that a partnership dissolves whenever a partner is added
to or deleted from the business. In Fairway, two partners had sold
their partnership interests to the third remaining partner and one
outside party. The court held that the partnership had dissolved and
that the title insurance covering the dissolved partnership did not
cover the reconstituted partnership. The court stated: "Ohio
follows the common law aggregate theory of partnership, under which a
partnership is regarded as the sum of the persons who comprise the
partnership." (Id. at 122.) The court also stated that the Ohio
Uniform Partnership Law did not change this rule.
WTI counsel have distinguished Fairway from the WTI situation on two
principal grounds. First, Fairway involved two separate partnership
agreements, where the second partnership agreement expressly
acknowledged the formation of a new partnership. Second, neither of
the Fairway agreements provided that the partnership would not
dissolve if a partner was deleted from the business. By contrast,
WTI involves one partnership agreement that contains provisions that
may be interpreted as providing that the partnership would not
dissolve upon a change in partners.
In two unreported Ohio state court cases, both dealing with
partnership agreement provisions that differed from the Uniform
Partnership Act, the courts reached different results on whether to
honor the partnership agreement. In Warren v. Craig, No. C-820789
(Hamilton Cty. App., July 20, 1983), the court held that the
partnership had dissolved when one partner left the partnership,
notwithstanding the fact that none of the events for dissolution
under the partnership agreement had occurred. The court based its
decision on the Ohio statutory provision that a partnership may be
dissolved in contravention (violation) of the partnership agreement
by the express will of any partner at any time. In the other case,
Cherry Valley Corp. v. Estate of Riley, No. CA-2874 (Licking Cty.
App., November 23, 1982), the partnership agreement provided that the
partnership would not dissolve upon the death of a partner, but that
the interest of the deceased partner would pass to his personal
representative. In this case, the court honored the partnership
agreement and held that the partnership did not dissolve,
notwithstanding the Ohio statutory provision that a partnership
dissolves upon the death of a partner.
OHIO ATTORNEY GENERAL'S
CONCLUSIONS
------------------------------------------------------ Chapter 2:3.1.3
The Ohio Attorney General concluded in the June 1993 Investigative
Report that under Ohio partnership law, the WTI partnership had
dissolved. According to the Attorney General, in Ohio a partnership
dissolves whenever a partner is added to or deleted from the
business. Furthermore, under both Ohio common law and the Ohio
Partnership Act, the dissolution occurs, even if the partnership
agreement states otherwise. After dissolution, the business is
either terminated or continued as a new entity, such as a new
partnership. The Ohio Attorney General relied on the Fairway case
and several other Ohio cases, including Warren v. Craig.\8 The
Attorney General's report did not mention the Cherry Valley case.
The Attorney General concluded that dissolution of the partnership
occurred on more than one occasion and resulted in transfers of
ownership of the incinerator. The Attorney General further found
that WTI had not applied for or received a revision or modification
of the permit, in violation of three provisions of Ohio's hazardous
waste law.\9 In a letter to an organization representing incinerator
opponents, dated September 22, 1993, the Chief of the Environmental
Enforcement Section of the Ohio Attorney General's office confirmed
that the report "conclud[ed] that WTI's changes of ownership have
resulted in unlawful installation and operation of the facility by
the current owner, in violation of three Ohio provisions of law which
prohibit ownership and operation without a permit."
--------------------
\8 In Warren v. Craig, the court ruled that notwithstanding the
partnership agreement, the partnership dissolved because one partner
expressed a desire for dissolution. The Ohio Attorney General cited
the case for the more general proposition that the deletion or
addition of a partner dissolves a partnership even if the partnership
agreement states otherwise.
\9 The Ohio Attorney General also considered whether the partnership
had dissolved on an additional ground. The Joint Venture Agreement
provides that in the event of a transfer to an affiliated
corporation, the original partner remains liable. On this basis, WTI
counsel had concluded that the transfers were not withdrawals.
Instead, they were conveyances of partnership interests. Under Ohio
Rev. Code sec. 1772.26(A), a conveyance of a partnership interest
does not result in the dissolution of the partnership. The Ohio
Attorney General interpreted this provision to mean that the Joint
Venture Agreement allows transfers to affiliates of the original
partners and provides that in such an event the business would
continue. However, the Attorney General concluded that after such a
transfer, the venture continues as a new partnership. EPA did not
reach a conclusion on this issue.
EPA'S CONCLUSIONS
------------------------------------------------------ Chapter 2:3.1.4
In an October 1992 memorandum, well before the June 1993 Ohio
Attorney General's report, attorneys for EPA analyzed Ohio's
partnership law and concluded that no legal change had occurred in
the WTI partnership. Thus, the attorneys determined that no transfer
of ownership of WTI occurred.\10
The attorneys stated that:
"Under state law, it appears that the changes of the WTI
partners might well have resulted in the dissolution of the
original partnership absent a provision to the contrary in the
agreement among the partners."
The attorneys concluded, however, that the Joint Venture Agreement
expressly limited the grounds for dissolution and contemplated that
the partnership would continue, even though the partners had changed.
The EPA attorneys relied on the Cherry Valley case as well as cases
from other jurisdictions in which courts had honored provisions
against dissolution in partnership agreements. They also relied on
the general principle that "[w]here a partnership agreement
specifically provides that the firm will not dissolve on the
withdrawal of a partner, the courts recognize that the partnership
continues to exist after a partner's withdrawal."\11
--------------------
\10 As explained below, EPA's response to the Ohio Attorney General's
report was that the issues addressed had not been definitively
resolved by Ohio case law and that EPA does not believe that there is
a "clear right answer" on the state law issues presented.
\11 59A Am. Jur. 2d sec. 829.
VALIDITY OF THE PARTNERSHIP
EXAMINED
-------------------------------------------------------- Chapter 2:3.2
Apart from whether the partnership has dissolved, the validity of the
WTI partnership has been examined by EPA, the Ohio Attorney General,
and other interested parties. Von Roll America, Inc., apparently now
owns 100 percent of the stock of the four corporate partners.\12 With
one exception, all of the officers and directors of the four
corporate partners are also officers and directors of Von Roll
America, Inc. The president of Von Roll America, Inc., is also the
president of all four partners. Three of the four partners have no
employees.
The issue raised is whether WTI legally constitutes a single
corporate entity and not a four-party partnership. If it is a single
corporate entity, ownership of the facility has been transferred from
the partnership to a new owner--Von Roll America, Inc. EPA, the Ohio
Attorney General, and others disagree on whether the separate
existence of the four corporate partners would be recognized by a
court.
EPA, in its analysis, concluded that an Ohio court would not
disregard the corporate form of the partners. EPA stated that the
four corporations comprising WTI are validly incorporated, registered
in Ohio, and in good standing both in their states of incorporation
and in Ohio. The partners filed separate income tax returns with the
Internal Revenue Service. EPA relied on case law supporting the
principle that courts are generally reluctant to disregard the
separate identity of different business organizations. In one case,
for example, the Supreme Court of Ohio held that the fact that a
parent corporation owned all of the stock of a subsidiary corporation
and that the two corporations had the same directors did not justify
disregarding the separate corporate form. (North v. Higbee Co., 3
N.E. 2d 391, 939 (Oh. 1936).) EPA also relied on the legal
principle that, as a general matter, the corporate entity will be
disregarded only in the presence of injustice, unfairness, or fraud.
(Bucyrus-Erie v. General Products, 643 F.2d 413, 418 (6th Cir.
1981) (applying Ohio law).)
The Ohio Attorney General examined the facts of the WTI partnership
and concluded that the four WTI partners are little more than alter
egos of their parent, Von Roll America, Inc. The Ohio Attorney
General stated that to determine whether a business is a partnership,
the courts look to a number of elements, including sharing of profits
and losses, authority in all partners to make decisions binding on
the partnership, shared ownership of the partnership's capital
account, and filing of partnership tax returns. The Ohio Attorney
General concluded that WTI lacks a number of these elements. The
Ohio Attorney General noted that the president of Von Roll America,
Inc., who is also the president of all of the subsidiaries, makes the
day-to-day decisions for WTI. Von Roll America, Inc., makes all
decisions and collects all profits through Von Roll (Ohio), Inc., as
the managing partner of WTI. None of the other three WTI
subsidiaries share in these roles. According to the Attorney
General, Von Roll America, Inc., not a four-corporation partnership,
has been installing and operating the incinerator. The Attorney
General concluded that because WTI is no longer functioning as a
partnership, but instead is functioning effectively as a single
corporate entity, the Ohio EPA "could find" that the incinerator has
been transferred to another person.
WTI submitted a Class 1 permit modification request to EPA on August
5, 1993, requesting that Von Roll America, Inc., be listed on the
federal permit as owner and operator of the facility. If the
modification is approved, WTI will transfer exclusive ownership and
operational control of the facility to Von Roll America, Inc., and
formally dissolve the WTI partnership. On August 24, 1993, EPA
initiated a 30-day comment period on the proposed modification to
list Von Roll America, Inc., on the federal permit. EPA proposes
first to add Von Roll America, Inc., to the permit and, in a later
modification, delete WTI and Von Roll (Ohio), Inc., from the permit.
EPA will make a final determination after considering the public
comments.
EPA has stated that it has decided not to bring an enforcement action
against WTI or Von Roll America, Inc., at this time for failing to
notify the agency of a change in ownership (in contrast to the change
of operator) because of the legal uncertainties surrounding the
ownership issues. EPA stated that there is not a "clear right
answer" on the legal issues presented by the ownership
transactions.\13
--------------------
\12 Von Roll America, Inc., transferred its partnership interest to
its subsidiary, Von Roll (Ohio), Inc., on October 31, 1986. Von Roll
America, Inc., purchased the stock of Waste Technologies Incorporated
(no comma), and Energy Technology Company on May 7, 1990, and the
stock of Environmental Elements Ohio (Inc.) on June 22, 1990.
Waste Technologies, Incorporated (with a comma) was owned by
Stephens, Inc., which had approximately 99 percent ownership, and
Donald Brown, who had approximately 1 percent ownership. Waste
Technologies, Incorporated (comma), transferred its interest in the
partnership to WTI Acquisition, Inc., which then changed its name to
Waste Technologies Incorporated (no comma). According to the Ohio
Attorney General, in the process Donald Brown may have been cut out
of his share of the ownership of the partnership.
\13 EPA believes that even assuming that the Ohio Attorney General's
conclusions on Ohio partnership law are correct, the federal RCRA
permit is still valid and effective. EPA's analysis of its position
principally is contained in a document entitled "Legal Analysis of
Validity of WTI Permit."
GAO'S ANALYSIS
------------------------------------------------------ Chapter 2:3.2.1
We have not reached an independent legal conclusion under Ohio law on
either of the issues discussed above--whether the partnership has
dissolved and whether the partnership merged into a single corporate
entity--for the following reasons. First, while opinions differ on
whether the facility has been effectively transferred to Von Roll
America, Inc., because of Von Roll America, Inc.'s ownership of the
four partners, EPA has, in fact, instituted a permit modification to
change the owner designated on the permit to Von Roll America, Inc.
As discussed earlier, we believe it is within EPA's discretion to
modify a permit after a change in ownership (or operational control)
has occurred. Second, as discussed below, the resolution of those
issues under Ohio partnership law does not affect the validity of
WTI's RCRA permit. Moreover, as a practical matter, those issues of
state partnership law, however they are resolved, have no bearing on
EPA's ability to identify responsible parties and hold them liable.
As EPA pointed out in an October 1, 1992, legal memorandum:
"[R]egardless of the resolution of these technical [Ohio
partnership law] issues, the de facto owners and operators of
RCRA facilities are fully liable for compliance with RCRA
regardless of whether they are on the permit, and U[.]S[.] EPA
has full authority to enforce the applicable statutory and
regulatory requirements against all such parties. We do not
believe that the enforceability of a RCRA permit turns on
technical issues of state business association law."
VALIDITY OF THE FEDERAL RCRA
PERMIT
-------------------------------------------------------- Chapter 2:3.3
Because of the changes in the WTI partnership, the validity of WTI's
federal RCRA permit has been called into question. EPA has concluded
that the permit is valid and enforceable. We agree.
Incinerator opponents have stated in various forums that the change
from the entity and partners that applied for the permit to the WTI
entity that now holds the permit, without modification or reissuance
of the permit, constitutes an unauthorized transfer of the permit in
violation of RCRA. Some incinerator opponents have stated that since
the permit was not modified and transferred to reflect a change in
ownership, WTI owns and is operating the plant without a permit.
Other incinerator opponents also have stated that WTI's failure to
obtain prior approval of owner and operator changes cannot be cured
and that WTI now holds an invalid permit.
EPA has determined that the permit remains valid. In its analysis,
EPA stresses that a RCRA permit is issued "to owners and operators
for a hazardous waste management facility" (emphasis in original).
Thus, according to EPA, under the statute and regulations, upon
issuance of a facility permit, both the owners and operators and the
facility can be viewed as having the permit. EPA also states that
even if the old WTI arguably no longer exists and therefore could not
now transfer the permit, the permit can continue to exist. EPA
states that a RCRA permit tailors the general RCRA regulatory
requirements to a specific facility and thereby establishes a set of
requirements that should be viewed as continuing to exist and
attaching to the facility irrespective of whether the permit
correctly identifies the facility's present owner and operator.
EPA also states that the regulations require that a permit either be
modified or revoked and reissued in order to effect a change in
ownership or operational control. However, the regulations do not
require that a permit be voided or terminated if the permit
modification procedures are not followed prior to a transfer of
ownership or operational control. Neither the statute nor the
regulations support the view that a permit is automatically
terminated as a result of an unapproved transfer of facility
ownership or operational control (or any other violation or event).
Under the regulations, termination is not automatic; rather, it is a
matter within EPA's discretionary authority.\14 If EPA chooses to
pursue termination, EPA must use the same procedures used for permit
issuance, including a notice of intent to terminate, an opportunity
for public comment, and an opportunity for review by the EPA
Environmental Appeals Board.
In further support of its view that the permit does not automatically
terminate and remains valid following an unapproved transfer of
facility ownership, EPA notes that it addressed this issue in the
preamble to the 1980 RCRA permitting regulations. EPA stated:
"Under this scheme, transfer in itself will no longer be a cause
for termination of a permit. Rather, the permit will either be
. . . transferred after a required modification or revocation
and reissuance; or the permit will not be transferred but will
remain with the prior owner or operator of the facility, and the
new owner or operator of the facility will be subject to
enforcement for operating without a permit." (45 Fed. Reg.
33314 (May 19, 1980).)
Thus, EPA intended that a permit could continue to exist following an
unapproved transfer of ownership or operational control. As
explained above, EPA believes that even if there is no prior owner
for the permit to remain with, the permit continues to exist and
attaches to the facility. With respect to the statement in the
preamble that the transferee is liable for operating without a
permit, EPA believes that because of (1) the technical nature of any
transfers of ownership in the WTI situation and (2) the complexity of
the partnership issues involved, it is not clear whether Von Roll
America, Inc., would be liable for owning or operating without a
permit, on the basis of the conclusions in the Ohio Attorney
General's report.
The agency further states that the permit is an important mechanism
for enforcing the statute and regulations at a facility. EPA argues
that an interpretation of RCRA by which a permit terminates
automatically upon unapproved transfer (or any other violation) would
cede control of the permit to the permittee. According to EPA, such
an interpretation would create the incentive for facility owners and
operators to transfer ownership and operational control of their
facilities to other companies in an attempt to avoid permit
responsibility.
EPA also states that its conclusion that an unapproved transfer does
not result in automatic termination is supported by the nature of the
changes in the WTI partnership. EPA states that, for a number of
reasons, it views any changes in ownership and operational control
here as technical changes. Von Roll America, Inc., was an original
partner, so any transfer of ownership or operational control to that
corporation is a transfer to a company that has been actively
involved in the project from its inception. Also, all of the changes
to the partnership involved affiliated companies and did not
introduce outside companies into the partnership. Furthermore, under
the terms of the WTI partnership agreement, Von Roll America, Inc.,
has remained liable for obligations of the partnership, even though
it transferred its partnership to its wholly owned subsidiary, Von
Roll (Ohio), Inc. In addition, WTI, as presently constituted, and
Von Roll (Ohio), Inc., have obtained the financial instruments
required by EPA regulations to demonstrate financial responsibility.
Thus, EPA found that there had been continuity of legal liability and
financial responsibility. EPA stated that financial responsibility
is its principal concern with respect to changes in ownership and
operational control. EPA also stated that the partnership issues
addressed in the Ohio Attorney General's report are complex and, in
EPA's view, have not been definitively resolved by Ohio case law. As
noted above, EPA does not believe there is a "clear right answer" on
the state law issues presented. In particular, because the Attorney
General never reached a conclusion that the facility had been
transferred to Von Roll America, Inc., and instead raised the
possibility that such an interpretation could be made, EPA viewed the
report as less than definitive.\15
EPA also addressed the issue of whether the requirements of a permit
are enforceable following an unapproved transfer of ownership or
operational control. Opponents of the incinerator have expressed
concern that if the correct owners and operators are not named on the
permit, those parties may be able to escape liability. The opponents
have stated that the protection of human health and the environment
must be maintained by ensuring that RCRA's financial responsibility
and closure requirements can be met by those who have ownership and
operator interests. EPA states that "[b]ased on the language of RCRA
and the U.S. EPA's own implementing regulations," the owner and
operator are legally bound by both the permit conditions and any
independently enforceable regulations, regardless of whether the
owner or operator signs the permit. EPA's position is supported by
judicial decisions and EPA's administrative determinations.
In two court cases, individuals who were not named as owners or
operators in permit applications were held individually liable, along
with the named owners and operators, for compliance with RCRA.\16
Also, a 1986 administrative proceeding reached the same result.
There, operators who leased premises stored hazardous waste upon the
premises without obtaining a permit. The owners had no involvement
with the operation of the business. Nevertheless, they were held
jointly liable with the operator for penalties for failing to obtain
a RCRA permit and were also liable jointly for complying with the
closure requirements. (Arrcom, RCRA (308) Appeal No. 86-6 (Final
Decision, May 19, 1986).)
Concern also has been expressed about whether WTI would have
sufficient assets or insurance in the event of a catastrophe. RCRA
regulations establish financial assurance requirements. The
liability insurance required by those regulations was obtained by
WTI, effective December 31, 1991. The regulations require the owner
or operator to maintain liability coverage for sudden accidental
occurrences in the amount of $1 million per occurrence, with an
annual aggregate of at least $2 million, excluding legal defense
costs. WTI obtained insurance coverage in the amount of $4 million
per occurrence and $8 million in the aggregate. A standby letter of
credit for closure, also required by the regulations, was obtained by
Von Roll (Ohio), Inc. Regulations governing financial assurance for
closure require an owner or operator of a facility to estimate the
cost of closing the facility and establish financial assurance to
cover the adjusted closure cost estimate. In December 1991, WTI
received an irrevocable standby letter of credit from the Union Bank
of Switzerland for up to $6 million. The insurance and letter of
credit meet the financial responsibility requirements in the
regulations.
--------------------
\14 Several lawsuits have been filed concerning WTI, challenging,
among other things, the validity of WTI's permit. In Palumbo v.
Waste Technologies Industries, 989 F.2d 156 (4th Cir. 1993), the
U.S. Court of Appeals for the Fourth Circuit stated that the
allegations that WTI failed to notify EPA that the members of the
partnership had changed and that WTI had effectively transferred its
permits to a new entity are challenges to EPA's permitting process.
The Fourth Circuit Court of Appeals ordered the case to be dismissed
because the lawsuit had been brought in federal district court, which
had no jurisdiction to hear challenges to permit decisions. Thus,
the court did not reach a decision on the substantive issues.
In Greenpeace, Inc. v. Waste Technologies Industries, 9 F.3d 1174,
1180 (6th Cir. 1993), a similar decision by the Sixth Circuit Court
of Appeals, the court stated:
"By specifying that courts of appeals are to review the permit
decision in accordance with 5 U.S.C. 701-706, the judicial review
provisions of the Administrative Procedure Act, Congress manifested
an intention that these courts adhere to a standard of review that is
deferential to the EPA's expertise in these matters."
\15 EPA stated that the Ohio Attorney General's report equivocated on
the ownership of the partners by Von Roll America, Inc. The report
states that the Ohio EPA "could" find that the incinerator had been
transferred to Von Roll America, Inc.
\16 United States v. Environmental Waste Control, Inc., 710 F.
Supp. 1172 (N.D. Ind. 1989). (Court determined that corporate
owner of the land on which landfill is located is liable under RCRA
as an owner. Court also determined that president of the corporation
that operates the landfill, who previously had been sole shareholder
of the corporation, was liable as an operator under RCRA because of
his active involvement in day-to-day activities and decision-making
at the facility.) United States v. Conservation Chemical Co., 733 F.
Supp. 1215 (N.D. Ind. 1989). (Principal shareholder who was also
president and chairman-of-the-board of corporate permittee was held
liable as an operator under RCRA because of his active involvement in
the operation of the facility.)
CONCLUSIONS
---------------------------------------------------------- Chapter 2:4
Various changes in WTI's partners and a contract between Von Roll
(Ohio), Inc., and the WTI partnership have led EPA, WTI opponents,
and others to raise questions of whether the operational control and
ownership of WTI has legally changed, without a required modification
of WTI's permit. Opponents also have questioned whether, as a result
of these changes, WTI's RCRA permit is valid.
EPA had the authority to modify WTI's permit to add Von Roll (Ohio),
Inc., as an additional operator, notwithstanding the fact that WTI
had failed to give EPA prior notice of the change, as required by
RCRA regulations. In modifying the permit, EPA, in effect, waived
its own procedural regulations. The U.S. Supreme Court has held
that it is within the discretion of an administrative agency to relax
or modify procedural rules that the agency has adopted for the
orderly transaction of business before it. The advance notification
requirement of EPA's regulations does not confer procedural benefits
on individuals. Rather, it is designed to ensure sufficient time for
EPA to evaluate proposed changes in ownership or operational control
prior to their occurrence. Accordingly, EPA's waiver of its prior
notification requirement was within its discretionary authority.
Additionally, although the grounds for terminating WTI's permit or
imposing a penalty were present and EPA could have taken either
action, or both, EPA also could have decided to take neither action.
EPA's decision to impose a penalty on WTI for its failure to notify
EPA in advance of adding Von Roll (Ohio), Inc., as an operator, but
not to terminate the permit, was within EPA's discretion.
On the issue of whether ownership of WTI has changed, requiring a
permit modification, we have not reached an independent legal
conclusion under Ohio law on whether the partnership has dissolved
and whether the partnership merged into a single corporate entity for
the following reasons. First, while EPA and the Ohio Attorney
General hold different opinions on whether the facility has been
effectively transferred to Von Roll America, Inc., because of Von
Roll America, Inc.'s ownership of the four partners, EPA has, in
fact, instituted a permit modification to change the owner designated
on the permit to Von Roll America, Inc. As discussed above, this is
within EPA's discretion. Second, as discussed below, the resolution
of those issues under Ohio partnership law does not affect the
validity of WTI's RCRA permit. Moreover, as a practical matter,
those issues of state partnership law, however they are resolved,
have no bearing on EPA's ability to identify responsible parties and
hold them liable.
We agree with EPA that WTI's permit is valid and enforceable. EPA's
analysis concerning the validity of the permit is persuasive. A RCRA
permit establishes a set of requirements that should be viewed as
continuing to exist and attaching to the facility, irrespective of
whether the permit correctly identifies the facility's present owner
and operator. Moreover, EPA regulations on transfers of ownership do
not require that a permit be terminated if the permit modification
procedures are not followed prior to a transfer of ownership or
operational control. Under RCRA and its regulations, EPA has
discretion to determine whether to terminate a permit; no provision
exists for automatic termination of permits. As with EPA's
enforcement decision on the change in operational control for Von
Roll (Ohio), Inc., EPA has discretion to decide whether to terminate
WTI's permit for an unapproved transfer of ownership. In fact, in
the preamble to its RCRA regulations, EPA contemplated that a permit
would continue to exist following an unapproved transfer of
ownership.
Finally, on the basis of judicial decisions and EPA's administrative
determinations, each of the partners of WTI and Von Roll America,
Inc., may be held liable under RCRA as owner and operator of the
facility, although they are not named on the permit.
EPA COMPLIED WITH MOST OF ITS RCRA
REGULATIONS, BUT IN CERTAIN CASES
PROCEDURES WERE NOT FOLLOWED
============================================================ Chapter 3
In issuing a RCRA permit to WTI, EPA Region V generally followed and
in some cases exceeded regulatory requirements. Nevertheless, it did
not follow its regulations and procedures when it (1) issued WTI's
permit without obtaining the landowner's signature, (2) did not
require WTI's permit application to include an engineering analysis
to show that the facility and its flood protection devices could
withstand the forces of a flood, and (3) initially made a procedural
error, which it later corrected, in not providing complete
information to the state of West Virginia during a public comment
period on WTI's permit application. In addition, we found that EPA's
RCRA regulations do not provide for an alternative site analysis as
required by a federal executive order on floodplain management. None
of these shortcomings, however, would require EPA to terminate WTI's
RCRA permit.
In addition, in addressing other issues, we found that EPA Region V
followed its regulations and procedures in approving WTI's request
for a permit modification to add a piece of pollution control
equipment to the incinerator; has recently determined that the site
meets the load-bearing capacity requirement of its federal permit and
made a proposal to eliminate apparent inconsistencies between WTI's
federal and state permits with respect to the site's load-bearing
capacity; and has established the correct effective and expiration
date for the permit. We also found that the Ohio EPA considered the
effects that construction of the facility would have on existing soil
and groundwater contamination at the site.
VALIDITY OF RCRA PERMIT IS NOT
AFFECTED BY OMISSION OF THE
LANDOWNER
---------------------------------------------------------- Chapter 3:1
The Columbiana County Port Authority, which was the owner of the land
on which the WTI facility was located at the time the permit was
issued, was not listed as a co-permittee. In fact, under EPA
regulations the Port Authority was required to sign the permit as a
co-permittee. We do not believe, however, that this error renders
the permit invalid.
EPA requires owners and operators to have permits in order to ensure
maximum enforceability of the requirements of RCRA and its
implementing regulations. Furthermore, EPA considers an owner of the
land upon which a hazardous waste facility is located to be an
"owner" for purposes of RCRA. Thus, EPA's regulations require an
owner of land upon which a hazardous waste facility is located, as
well as the owner and operator of the facility, to become a
permittee. A landowner, such as the Port Authority, must sign the
permit application and be listed as a co-permittee, along with the
facility's operator. However, as discussed in chapter 2, EPA
considers owners and operators legally bound, under RCRA, by both the
permit conditions and any independently enforceable regulations,
regardless of whether they sign the permit.
In February 1992, Region V unilaterally modified WTI's permit to
include the Port Authority as a co-permittee. Region V acknowledged
that it had never sought to require the Port Authority's signature on
the permit application, filed years earlier, even though it was aware
the Port Authority owned the property on which the facility was
located.\1 EPA stated that by adding the Port Authority as
co-permittee on the WTI permit, it was only formalizing what RCRA
required.
The Port Authority protested the inclusion of its name to EPA's
Environmental Appeals Board.\2 While it did not dispute EPA's reading
of RCRA in terms of property owners' responsibilities, it objected to
being added to the permit in 1992, when its ownership of the land and
its relationship to WTI were known to Region V as early as 1981 when
WTI first applied for the permit. The Port Authority contended that
the region was barred as a matter of law from adding its name to the
permit.
In July 1992, the Environmental Appeals Board upheld on procedural
grounds the Port Authority's protest against being added to the
permit. It also noted, however, that EPA could add the Port
Authority's name to the permit in valid ways, such as issuing a
compliance order under RCRA directing the Port Authority to sign the
permit application. In any event, the Board pointed out that whether
or not the Port Authority had signed the permit application, EPA
considers a landowner, such as the Port Authority, jointly and
severally liable with the facility for carrying out the requirements
of the RCRA regulations.\3
In September 1992, the Port Authority sold the land on which the
facility is located to WTI, which had previously leased the land from
the Port Authority. As a result, EPA is no longer seeking to list
the Port Authority as a co-permittee on WTI's permit.\4
The statutory provision governing permit termination does not require
EPA to terminate an issued permit in the event it discovers that a
party that should have been listed as co-permittee has, in fact, not
been listed. RCRA authorizes EPA to determine the causes for
terminating a permit.
EPA, in its regulation, has listed the following such causes: (1)
the permittee has not complied with the conditions of the permit; (2)
the permittee has failed to disclose fully all relevant facts or has
misrepresented relevant facts; or (3) the permitted activity
endangers human health or the environment and can be regulated to
acceptable levels only by permit modification or termination.
None of the causes for permit termination under EPA's regulations are
applicable to this situation. The failure of the Port Authority to
sign the permit application, while a violation of RCRA regulations,
was not a violation of WTI's permit conditions. Furthermore, WTI
identified the Port Authority as the landowner when it filed its
permit application. Thus, it would be difficult to argue that WTI
either failed to disclose, or misrepresented, any relevant facts
about the Port Authority's ownership of the land. Thus, to terminate
the permit under either of the first two causes would inappropriately
penalize WTI for the omission of the Port Authority from the
permit.\5
The third cause for termination is that the permitted activity
endangers human health or the environment. The mere failure of the
Port Authority to sign the WTI permit does not, in and of itself,
constitute a threat to human health or the environment. The U.S.
Court of Appeals for the Fourth Circuit characterized this failure as
an "essentially technical violation in the EPA permitting process."\6
--------------------
\1 Region V used the request by the operator of the facility, WTI, to
modify the permit to authorize the installation and operation of a
spray dryer as an opportunity to correct the omission of the Port
Authority's name from the permit.
\2 The Environmental Appeals Board has the authority to review RCRA
permit decisions.
\3 In the Matter of: Waste Technologies Industries, East Liverpool,
Ohio, Consolidated RCRA Appeal Nos. 92-7, et alia, 1992 WL
19152(E.P.A.).
\4 The Ohio Attorney General's office, which conducted an independent
investigation of the WTI hazardous waste facility, agreed that the
Port Authority need not be a co-permittee since it no longer owns the
land.
\5 The Ohio Attorney General's office also concluded that action
against WTI because the Port Authority did not sign the permit
application would not have been warranted.
"The Ohio EPA could have taken enforcement action against [the Port
Authority] for owning a hazardous waste facility without having a
permit at any time while the [Port Authority] owned the land and did
in fact issue orders to the [Port Authority] requiring the Port
Authority to submit an application to be added to the permit. It is
not so clear, however, that the Ohio EPA could have taken action
against WTI.
"While the partnership was operating under a permit which should have
included the landowner, the permit was issued in accordance with
[applicable Ohio law]. Any action against WTI, rather than the [Port
Authority], would have had limited chances of success."
Investigative Report, pp. 81-82.
\6 Palumbo v. Waste Technologies Industries, 989 F.2d 156, 160 (4th
Cir. 1993).
EPA DID NOT FOLLOW ALL FEDERAL
FLOODPLAIN REQUIREMENTS
---------------------------------------------------------- Chapter 3:2
Executive Order 11988, as amended, requires that federal agencies not
support development within a floodplain unless no other practicable
alternative exists. If no practicable alternative exists to locating
in a floodplain, then agencies must take actions to minimize any
potential harm to people and property and natural floodplain values.
In addition to the executive order, RCRA regulations include specific
requirements that apply to facilities proposed to be located in a
floodplain. One of those requirements specifies that the applicant
must design, construct, operate, and maintain the facility to prevent
a washout of hazardous materials as a result of a flood. To
demonstrate this, the regulations require the applicant to submit an
engineering analysis, as part of the permit application, that shows
the various forces, such as water pressure and wave actions, expected
to result from a flood.
We found that RCRA regulations do not include a requirement to assess
practicable alternatives to floodplain siting and are not consistent
with the executive order's guidance on the level of flood protection
that should be provided. We also found that EPA Region V did not
conduct a practicable alternative site analysis when it processed
WTI's permit application. While EPA did not comply with this
executive order requirement, it does not appear that this failure
would require EPA to terminate the permit.
We also found that EPA did not require WTI to provide the engineering
analysis to verify that the facility and its flood protection devices
would be able to withstand the forces of a flood, as required by RCRA
regulations. WTI provided EPA with an engineering analysis in March
1990, about 8 months before beginning construction of the facility.
EPA Region V's files, however, did not contain evidence that the
agency had reviewed and determined that the information met the
regulatory requirement. In May 1994, an EPA Region V official told
us that the March 1990 analysis confirmed that the river bank should
withstand the forces of the flooded river and that the information
WTI provided in its application, along with the analysis it submitted
in 1990, satisfied the informational requirements of the regulations.
RCRA REGULATIONS DO NOT
INCLUDE ALL EXECUTIVE ORDER
REQUIREMENTS
-------------------------------------------------------- Chapter 3:2.1
In May 1977, the President issued Executive Order 11988, amended by
Executive Order 12148 in 1980, on floodplain management; it directs
federal executive agencies to avoid support of floodplain development
wherever a practicable alternative exists. The executive order
applies to all federal actions affecting land use, including issuing
permits, in a floodplain. Under the executive order, the term
floodplain is defined as the lowland and relatively flat areas
adjoining inland and coastal waters, including, at a minimum, that
area subject to a 1 percent or greater chance of flooding in any
given year. This area is also referred to as the base, or 100-year,
floodplain. Because a portion of the WTI site was below the 100-year
floodplain, EPA's issuance of WTI's permit was subject to the
requirements of the executive order.
Among other things, the order requires that if an agency proposes to
allow an action such as development in a floodplain, the agency shall
consider alternatives to avoid adverse effects and incompatible
development in the floodplain. The order further states that if the
agency finds that siting in the floodplain is the only practicable
alternative, then it shall (1) design or modify its action to
minimize potential harm to or in the floodplain and (2) prepare and
circulate a notice containing an explanation of why the proposed
action is to be located in the floodplain. Additionally, the order
requires each agency to provide an opportunity for early public
review of any plans or proposals for actions in the floodplain.
Finally, it requires that each agency, within 1 year of the date of
the order, issue or amend its existing regulations and procedures to
comply with the order.
RCRA regulations, however, do not include the executive order's
requirement for assessing practicable alternatives. In 1981, EPA
considered the executive order's requirements in developing its RCRA
regulations and determined not to require an analysis of practicable
alternatives in the proposed regulation's floodplain standard. EPA
decided not to require a practicable alternatives analysis on the
basis of the following policy considerations: (1) a shortage of
hazardous waste facilities exists, (2) many industrial on-site
hazardous waste treatment facilities are located in 100-year
floodplains, and (3) flood prevention technologies are available.
EPA stated that it relied on RCRA section 3004, which authorizes it
to set standards for hazardous waste facilities, and not the
executive order, to regulate private facilities in floodplains. EPA
further stated that it considered the proposed RCRA floodplain
standards as satisfying section 3004 while being consistent with the
executive order. EPA, however, did not address whether its
regulations fully satisfied the executive order's requirement or its
obligation under the executive order to include a practicable
alternatives analysis. EPA officials told us that the agency had not
reevaluated the need for a practicable alternatives analysis since
the regulations were promulgated.
Including the executive order's requirement for an alternative sites
analysis in RCRA regulations, in our opinion, would be consistent
with an EPA plan, announced in October 1993, to issue a notice of
proposed rule-making on new location standards. According to EPA,
the basis for these standards would be section 3004 of RCRA, as
amended in 1984. Under that section, EPA may specify criteria for
the acceptable location of new and existing hazardous waste
treatment, storage, and disposal facilities as necessary to protect
human health and the environment. The announcement stated that EPA's
goal for the location standards is to ensure siting of new hazardous
waste treatment, storage, and disposal facilities in the most
suitable locations.
The executive order does not address the consequences for a permittee
if an agency does not follow the order's requirements. Moreover, EPA
included in WTI's permit, in accordance with the executive order and
RCRA regulations, conditions requiring the facility to be designed,
constructed, operated, and maintained to prevent washout of hazardous
wastes from a 100-year flood. Therefore, in our opinion, EPA's
failure to follow the executive order's requirement to conduct an
assessment of practicable alternative sites for the WTI facility
would not require EPA to terminate WTI's permit.
Additionally, RCRA regulations are inconsistent with the U.S. Water
Resources Council and Federal Emergency Management Agency's guidance
on implementing the executive order. The guidance states that for
"critical" federal actions, the 500-year floodplain should be used
instead of the base, or 100-year, floodplain. Under this guidance,
hazardous waste activities are considered "critical" actions.
Although the WTI site, in fact, was elevated to the 500-year
floodplain level--consistent with the guidance--RCRA regulations
require only that facilities be designed, constructed, and maintained
to protect against washout of hazardous wastes from a 100-year flood.
EPA DID NOT REQUIRE WTI TO
PROVIDE ENGINEERING ANALYSIS
OF FLOODPLAIN IMPACTS
-------------------------------------------------------- Chapter 3:2.2
RCRA regulations require that a permit application for a hazardous
waste facility identify whether the facility is located in a 100-year
floodplain. If the facility is located in the floodplain, then the
applicant must provide either a detailed description of procedures it
will follow to remove the hazardous waste to safety before the
facility is flooded or information to show that the facility will be
built, operated, and maintained to withstand the forces of a flood.
If the applicant chooses the latter alternative, which WTI did, then
the regulations require the permit application to include an
engineering analysis to indicate the various hydrodynamic and
hydrostatic (that is, wave action and water pressure) forces expected
to result from a flood.
WTI, in its permit application, provided information which showed
that portions of the site on which it proposed to build the
incinerator were located below the 100-year floodplain level and
included a section to indicate how the site would be elevated to
prevent a washout of hazardous wastes by a 100-year flood. In this
section, WTI stated that the Columbiana County Port Authority, the
landowner, had agreed to elevate the site to the 500-year floodplain
level. WTI also stated that the erosion control provisions it
proposed at the site would be designed to withstand the hydrostatic
and hydrodynamic forces of the Ohio River during a 100-year flood,
but stated that it would provide additional engineering calculations
that verify the ability of the erosion control devices to withstand
the hydrostatic and hydrodynamic forces of the Ohio River during a
100-year flood before beginning construction.
On May 3, 1982, EPA Region V notified WTI that its application was
complete. That letter also stated, however, that under the
regulations, EPA reserved the right to request any additional
information necessary to evaluate the application. EPA Region V
officials discussed the need for WTI to provide the required
engineering analysis with WTI officials at two meetings in May and
June 1982. In July 1982, EPA Region V sent a letter to WTI that,
among other things, specifically requested WTI to provide the
required engineering analysis. EPA's letter stated that the
information provided should include special flooding factors such as
wave action that would be considered in designing, constructing,
operating, and maintaining the facility to withstand a washout of
hazardous materials by a 100-year flood.
Later that month, WTI's counsel stated in a letter to EPA that
detailed information on fill engineering and erosion control would
not be available until WTI exercised its lease option with the Port
Authority and the Port Authority, in turn, authorized its consultant
to do the necessary engineering work. In November 1982, just before
the opening of the public comment period provided for WTI's permit
application and EPA's draft permit, WTI revised portions of its
application, including the floodplain section. That revised section,
however, did not include the requested engineering analysis but
stated only that WTI would submit it 60 days before beginning
construction.
Subsequently, an EPA headquarters permit assistance team, which was
reviewing and assisting the region in processing the WTI application,
in April 1983 comments on Region V's draft permit stated that the
artificial elevation of the site above the floodplain should be
viewed as a measure to prevent washout. The team further stated that
the key question is whether the measures used to elevate the site
will withstand a 100-year flood. It also questioned the adequacy of
the floodplain information WTI had provided and recommended that the
region request WTI to provide more supportive evidence that the
facility would meet the regulatory floodplain requirements.
EPA Region V, however, did not request WTI to provide the engineering
analysis before it issued the permit in June 1983. In its response
to comments on the draft permit, issued on the same date as the final
permit, EPA Region V stated that the elevation of the site above the
floodplain does not remove it from the jurisdiction of the floodplain
standard. It also stated that the conditions on elevation of the
site included in the issued permit would meet the requirement to
design, construct, operate, and maintain the facility to prevent
washout of hazardous waste by a 100-year flood. Although EPA
incorporated most of the flood protection provisions WTI had included
in its application, it did not require WTI as a permit condition to
submit the engineering analysis required by the regulations.
According to the EPA Region V official responsible for reviewing
WTI's application, WTI was not required to include the engineering
analysis in its application because, based on his professional
engineering judgment, the erosion control information included in the
application was sufficient. By not requiring that WTI submit the
analysis as part of the application, EPA also did not provide the
public an opportunity to comment on the analysis. (RCRA's public
participation requirements are discussed later in this chapter.)
Although not required by its permit to provide the information to
EPA, in March 1990, about 8 months before it began constructing the
facility, WTI did provide EPA with an engineering analysis indicating
that the soil erosion measures proposed for the WTI site would be
able to withstand the forces of a 100-year flood. The WTI file at
Region V, however, did not contain either (1) a May 1987 soil study
done at the WTI site and used by the engineering firm that prepared
the analysis as support or (2) evidence that EPA had reviewed and
analyzed the information that was provided. Furthermore, our review
of this document showed that it proposed changing specific soil
erosion provisions required by WTI's permit, but EPA's administrative
file does not show that it ever questioned WTI about the proposed
changes. According to EPA, the facility, nonetheless, was built
following the provisions of the original permit.
For these reasons, we asked EPA Region V officials on what basis they
could be assured that the WTI facility could withstand the forces of
a 100-year flood. In an April 1994 letter to us, the EPA Region V
Director of the Waste Management Division stated that EPA believed
the March 1990 analysis confirmed that the river bank should
withstand the dynamic forces of the flooded river. The letter
further stated EPA's belief that the information WTI provided in the
application, along with the additional information submitted by WTI
in March 1990, satisfied the informational requirements of the
regulations.
EPA ACTS TO RESOLVE
LOAD-BEARING CAPACITY ISSUE
---------------------------------------------------------- Chapter 3:3
Concern has been expressed that the WTI site does not meet a
load-bearing capacity requirement contained in its RCRA permit.
Originally this requirement was contained in both WTI's federal and
state permits. After Ohio EPA notified WTI that it was in violation
of this requirement, WTI requested and obtained approval from Ohio
EPA to substitute a requirement for a geotechnical study for the
specific load-bearing capacity contained in its state permit. WTI,
however, did not request EPA to change the load-bearing requirement
in its federal permit at that time. Thus, WTI's RCRA permit
continues to contain the specific load-bearing capacity requirement
that Ohio EPA said WTI violated. Subsequently, in April 1994 EPA
announced that it believed WTI met the load-bearing requirement
contained in its federal permit and also made a proposal involving
the load-bearing capacity issue which it believes will resolve the
apparent inconsistency between WTI's federal and state permits.
In its application for both the federal and state permits, WTI
proposed filling in the site to elevate it to the 500-year floodplain
level. Also included in its application and related to its proposal
to elevate the site above the floodplain, WTI provided information on
how the facility, including the proposed fill, would be designed to
provide protection against a washout of hazardous wastes by a
100-year flood. One of those design specifications was that the
resulting load-bearing capacity would be at least 3,000 pounds per
square foot. The EPA file on the WTI permit contained little
documentation related specifically to the load-bearing capacity
requirement, but in its June 1983 Response to Comments on the
original application and EPA's draft permit, EPA indicated that (1)
this permit condition as well as the other specific requirements
related to the floodplain had been inserted into the permit from the
permit application, (2) these requirements were based on good
engineering practice, and (3) the Corps of Engineers had found them
to be acceptable.
The Ohio hazardous waste facility permit issued to WTI contained the
same load-bearing capacity requirement. In addition, the Ohio
hazardous waste facility permit also required WTI to provide an
engineering certification that this requirement, as well as a
requirement that the site be elevated to the 500-year floodplain
level, had been met before beginning construction of the facility.
An engineering study done for WTI and submitted to Ohio EPA in
November 1990 showed that the load-bearing capacity was not 3,000
pounds per square foot across the entire site. In January 1991, the
Ohio EPA notified WTI that it was in violation of the state permit
because it had not met the certification requirements. In responding
to this notice, WTI contended that the load-bearing capacity
requirement pertained only to the fill and that it was the underlying
soil, not the fill, that did not meet the 3,000 pounds per square
foot load-bearing capacity requirement.
After meeting with Ohio EPA officials, however, WTI requested and
obtained approval from Ohio EPA for a permit change to substitute a
geotechnical study of the site for the 3,000 pounds per square foot
load-bearing capacity requirement. When Ohio EPA approved this
change in December 1991, it stated that the purpose of the original
load-bearing capacity requirement was to ensure that the WTI facility
would have adequate foundational support for the proposed
construction. It also stated that when the geology of a site did not
provide adequate load-bearing capacity, such as was the case at the
WTI site, alternative engineering techniques, such as driven piles or
spread footers, are typically used to provide adequate foundational
support. It stated further that the agency had reviewed the
geotechnical report and data on foundational support for the
structures and the roadways at the facility that WTI had provided and
found that adequate measures had been taken to provide for proper
structural support throughout the facility. Also according to Ohio
EPA, although unlikely, a potential does exist for lateral shifting
of the underlying soils at the site as a result of the pressure from
denser fill material. Thus, Ohio EPA also added a new permit
condition to require WTI to conduct monthly inspections and periodic
surveys of the river bank area to verify that no movement is
occurring and to take any necessary corrective action should movement
occur.
WTI, however, did not request that EPA change the load-bearing
capacity requirement in its federal permit when it requested the Ohio
EPA to modify the state permit. Thus, the 3,000 pounds per square
foot load-bearing capacity remained a requirement of WTI's RCRA
permit. Even though WTI did not request that EPA modify its federal
permit, EPA did receive and respond to comments on the load-bearing
capacity issue during the public comment period provided for WTI's
RCRA permit modification request to add a piece of pollution control
equipment--a spray dryer--to its incineration system. In response to
one of those comments, EPA said that it agreed that the change from a
specific load-bearing capacity requirement to a performance-based
condition based on the results of a geotechnical study was a
reasonable approach. In response to another comment, EPA said
further that because RCRA had no specific regulation for this
standard, the facility was allowed to use a functionally equivalent
method to show compliance with this condition "with the Agency's
approval." However, although EPA may have approved of the change, it
did not change the load-bearing capacity requirement in WTI's RCRA
permit.
In early July 1993, we met with EPA regional officials to discuss
this difference in the state and federal permits and ask whether WTI
was in violation of the load-bearing capacity requirement in its RCRA
permit. Later that month, WTI requested EPA to change the
load-bearing capacity requirement in its federal permit. In its
request, WTI referred to EPA's February 1992 Response to Comments and
stated that in issuing the permit modification, EPA had omitted the
change. Thus, WTI proposed a Class 1 permit modification to correct
what it characterized as a typographical error. In a September 1993
letter to WTI, EPA Region V stated that it did not agree that the
record clearly shows that EPA had intended to make this change in the
February 1992 permit modification. It further stated that EPA had
determined that a Class 1 permit modification was not appropriate
because it could potentially deny appeal rights to those members of
the community interested in this issue. Finally, EPA stated that the
proposed permit modification should be handled through a Class 2
permit modification to properly allow for public comment and appeal
rights. WTI, however, did not resubmit a request to modify the
load-bearing capacity requirement contained in its RCRA permit.
On April 29, 1994, EPA announced that it had evaluated a number of
possible inconsistencies between WTI's federal RCRA permit and its
Ohio hazardous waste facilities permit, including the load-bearing
capacity issue. With respect to that issue, EPA stated that the
compacted fill at the WTI site met the engineering specification of
3,000 pounds per square foot and thus met its federal permit
requirement. In the announcement, EPA also addressed the information
it provided in its response to comments on the spray dryer and said
that its response did not address the issue of whether a RCRA permit
modification was needed.
EPA stated that to resolve the apparent inconsistency between the
federal and state permits, it was proposing that WTI pursue a Class 1
permit modification with prior EPA approval. This modification would
add language to its federal RCRA permit incorporating requirements
relating to the geotechnical study and certification that the
facility is designed in accordance with the study, but would not
change the permit requirement for the recompacted fill to meet the
3,000 pounds per square foot specification. EPA further stated that
it considered this change to be administrative (i.e., a Class 1
modification) because EPA has already reviewed the location and
design of the facility in the original permit and a geotechnical
study and certification have already been submitted to the Ohio EPA
pursuant to the requirements of WTI's state permit. According to an
EPA official who was involved in preparing EPA's proposal, as a
result of the agency's evaluation of the apparent inconsistency
between the federal and state permits with respect to the
load-bearing capacity issue, EPA had also concluded that a Class 2
modification was not necessary because its proposal for a Class 1
modification (to add the requirement for a geotechnical study to the
federal permit and a certification that the facility is designed in
accordance with that study) would be an addition to the permit and
not a substitution of one requirement for another as envisioned in
September 1993.
DISCRETION ALLOWED BY
REGULATIONS MAY RESULT IN
INCONSISTENT OPPORTUNITIES FOR
PUBLIC PARTICIPATION
---------------------------------------------------------- Chapter 3:4
Throughout the permitting process, opponents of the WTI facility have
expressed concern about the level of public involvement that has been
provided. We found that with one exception--which EPA corrected
before WTI's permit became effective in January 1985--Region V has
followed the regulatory requirements. In instances when the
regulations do not provide specific guidance, the Regional
Administrator has discretion in providing opportunities for public
participation in the permitting process. We found that, on two
occasions, the Regional Administrator exercised his discretion to
provide an increased level of public participation in WTI permit
decisions involving changes in ownership and operational control. On
another occasion, however, the Regional Administrator exercised his
discretion and did not provide an opportunity for public
participation during the permit decision-making process. In this
case, he initially decided not to obtain public comment on updated
plans WTI submitted to the region as required by its RCRA permit.
Subsequently, after EPA Region V had approved the updated plans and
in response to public concern, the Regional Administrator decided to
provide the public with an opportunity to comment on these updated
plans.
As part of a new strategy to strengthen federal controls over
hazardous waste incinerators and industrial furnaces, EPA is
considering options to increase opportunities for public
participation. One of these options addresses some of the specific
concerns expressed about the WTI permitting process. However,
additional opportunities exist for public participation in the
process.
REGION V HAS GENERALLY
FOLLOWED RCRA'S REQUIREMENTS
FOR PUBLIC PARTICIPATION
-------------------------------------------------------- Chapter 3:4.1
Under RCRA regulations, opportunities for public participation are
required under two circumstances--once before EPA makes a final
decision on whether to issue the permit and then subsequently only
when the permittee proposes to modify the permit in a way that could
(1) alter the conditions in the permit or (2) affect the facility's
ability to protect human health and the environment. RCRA
regulations refer to these as either Class 2 or Class 3
modifications. Although certain types of modifications (Class 1),
such as replacement of equipment with equal or upgraded components or
minor administrative and informational changes, do not require
opportunities for public participation, the public must be notified
of all changes made in the permit, and anyone may request that the
EPA Regional Administrator review the action. Additionally, the
regulations provide the regional administrator with the discretion to
increase the level of public participation on a proposed action on
the basis of expressed public interest.
Since WTI obtained its RCRA permit, it has requested EPA to approve
five Class 2 or Class 3 modifications of that permit. Under RCRA
regulations, public participation in the form of a public comment
period and, if requested, either a public meeting conducted by the
permittee or a public hearing conducted by EPA is required before a
permit is issued and before a major modification is approved.
Because four of WTI's five requested modifications were considered
simultaneously, the regulatory requirements for public participation
in EPA's decisions to award a permit and to approve a modification to
WTI's permit have applied on three occasions.
Although the region otherwise has generally followed the RCRA public
participation requirements, the EPA Administrator determined that
Region V made a procedural error in 1982 when it did not provide a
copy of the permit application, draft permit, and fact sheet to the
state of West Virginia during the 45-day public comment period on the
original application. In that case, after the state of West Virginia
appealed the Regional Administrator's published intent to issue the
permit, the public comment period was reopened for the purpose of
obtaining the state's comments. Subsequently, the Regional
Administrator determined after reviewing the comments that no changes
to the permit were necessary, and WTI's permit became effective in
January 1985.
The second occasion on which the RCRA public participation
requirements applied was WTI's October 1990 request to add a spray
dryer to the incinerator. As required by the regulations, WTI
published a public notice, established a public comment period, and
held a public information meeting on the proposed modification. As
provided for in the regulations, at least partly on the basis of the
expressed public interest in this modification, EPA elevated WTI's
request from a Class 2 modification to a Class 3 modification. This
action increased the level of public participation in the EPA
decision-making process in that EPA prepared a draft permit revision,
provided an additional public comment period, and attempted to hold a
formal public hearing on the proposed revision before making a
decision. Although the action was not required by the regulations,
EPA Region V and Ohio EPA officials held a jointly sponsored public
meeting on the day before the scheduled public hearing on the spray
dryer, at which time various federal and state officials were
available to answer questions on the proposed changes.
The purpose of the public hearing was to obtain public comments on
both WTI's spray dryer proposal and EPA's proposed permit changes.
The scheduled hearing was canceled soon after it began because
opponents to the proposed changes disrupted the hearing. All persons
attending the hearing, however, were invited to submit their written
comments on the proposed change to EPA during the accompanying public
comment period. The Regional Administrator's February 1992 decision
to approve the modification was appealed to the Environmental Appeals
Board for various reasons. In July 1992, the Environmental Appeals
Board denied the petitions for review of Region V's decision to
approve the spray dryer modification.
On the third occasion, during June and July 1993 WTI requested four
additional Class 2 permit modifications. These modifications were to
(1) add an enhanced carbon injection system, (2) modify the approved
trial burn plan to allow WTI to conduct a new test condition similar
to the condition it did not pass during the original trial burn, (3)
update the waste analysis plan, and (4) add additional types of
wastes to those it is approved to burn. As required, WTI published a
public notice of these changes, established a public comment period,
and held a public information meeting on the requested modifications
on July 27, 1993. Also as required by the regulations, EPA prepared
a response to comments, which it issued with its October 28, 1993,
decision to approve three of the four modifications. According to
EPA, it did not take any action on the requested modification to
update the waste analysis plan because the request involved issues
that remained to be resolved.
Several of those who commented on the proposed permit modifications
expressed concern that the WTI public meeting held in July 1993 did
not meet the procedural requirements of the regulations. Instead of
a traditional public meeting format, in which presentations are made
to the audience and members of the audience can ask questions and
receive answers that are heard by all, WTI set up four booths that
interested parties could visit. EPA addressed the concerns about
whether the WTI meeting met the regulatory requirements in its
October 1993 Response to Comments. According to EPA, the preamble to
the permit modification regulations states that the purpose of the
public meeting is to allow the permittee and the public to exchange
views and, to the extent possible, resolve any issues raised by the
permit modification request. The regulations do not establish a
prescribed format for the public meeting. In its Response to
Comments, EPA stated that it found the meeting to be consistent with
the intention expressed in the preamble and thus met the regulation's
conditions.
REGIONAL ADMINISTRATOR HAS
EXERCISED DISCRETION TO
PROVIDE ADDITIONAL
OPPORTUNITIES FOR PUBLIC
PARTICIPATION
-------------------------------------------------------- Chapter 3:4.2
RCRA regulations and EPA's guidance provide permitting officials with
discretion in determining whether to provide opportunities for public
participation in certain permitting decisions. Although EPA's
guidance encourages providing maximum opportunities for public
participation, specifically for issues involving a high degree of
expressed public interest or concern, the regulations do not ensure
that opportunities for public comment will be provided for all
information required as a result of a RCRA permit. For the WTI
permit, the Regional Administrator generally has exercised his
discretion to provide opportunities for public comment. The public,
however, was not provided with an opportunity to comment before the
agency approved updated plans that WTI submitted as required by its
RCRA permit. In response to expressed public concern, the agency is
now providing a public comment period on those plans.
On two occasions, the region decided to obtain public comments before
deciding whether to approve a WTI request for Class 1
modifications--changes that would not require obtaining public
comments under the regulations. On the first occasion, the Regional
Administrator decided that EPA would provide a 30-day period for the
purpose of obtaining public comment in response to WTI's request to
add Von Roll (Ohio), Inc., as an operator to the permit. As
discussed in chapter 2, under the regulations, if EPA is notified of
changes in the facility operator 90 days in advance of the change and
approves the change, this change would have been considered a Class 1
modification requiring only public notification. However, WTI did
not apply for the permit change until after WTI had entered into a
contract with Von Roll (Ohio), Inc., which in EPA's view assigned Von
Roll (Ohio), Inc., substantial independent operational control of the
facility. Because WTI failed to notify EPA 90 days before naming Von
Roll (Ohio), Inc., as operator and because EPA believed that public
involvement was warranted, the Regional Administrator exercised
discretion by providing a 30-day public comment period on the
proposed change. On the second occasion, EPA determined that it
would establish a 30-day comment period in response to WTI's August
1993 request to add Von Roll America, Inc., as an owner to its
permit. In August 1993, EPA Region V decided to allow the addition
of Von Roll (Ohio), Inc., as an operator on the permit. The request
to add Von Roll America, Inc., as an owner on the permit is still
under consideration.
In another instance, Region V did not allow an opportunity for public
participation before it approved various plans that WTI was required
by its permit to update. As a condition of its permit that became
effective in 1985, among other things, WTI was required to provide an
updated waste analysis plan and an updated personnel training program
to EPA at least 6 months before operation was planned to begin.
Additionally, at least 60 days before WTI could receive hazardous
wastes at the facility, it was required to provide EPA with an
updated contingency plan and instruments for financial assurance for
closure. The permit also required that all updated plans WTI
submitted be approved by the Regional Administrator before operations
could begin. The permit did not specify, however, whether these
updated plans would be subject to any public participation
requirements.
Under RCRA regulations, if the permittee requests a change to any
existing plans that are a part of the permit, the change is subject
to the public notice and public participation requirements of the
regulations applicable to the nature and scope of the change being
requested. In responding to appeals of its 1983 decision to approve
WTI's RCRA permit, EPA Region V stated that it had reviewed the
closure, contingency, training, and waste analysis plans submitted by
the applicant and had determined that they met or exceeded the
regulatory requirements. Recognizing, however, that WTI was a new
facility and detailed plans and specifications had not yet been
prepared, the region included as a condition of the permit that WTI
update and obtain approval of these specific plans and provide
financial responsibility documents before either accepting hazardous
waste at the site or beginning operations. The regulations, however,
do not provide any guidance on whether additional information
required to be submitted by the applicant at a later date should be
subject to public participation requirements.
EPA Region V officials told us that because WTI was required to
submit the updated information as a condition of the permit and this
action was not a result of a WTI request to change the permit, no
provision for public participation in the EPA decision-making process
was provided. This position differed, however, from the position EPA
took in its August 1984 Response to Comments by the state of West
Virginia. Specifically, with respect to the updated contingency plan
requirement, EPA Region V stated in those comments that because the
contingency plan is an attachment to the permit, the revised
contingency plan would be treated as a major modification and would
be subject to the public participation requirements of the
regulations. In another response, it stated that any change to an
attachment to the permit, such as an updated waste analysis plan,
would be subject to the public notification procedures required by
the regulations. Thus, when EPA prepared those response to comments
in 1984, it appears that the agency expected that the updated plans
would be considered as major modifications to the permit and subject
to the public notice and public participation requirements in effect
at that time. Regional officials recognized that this position
differed from the position it took when the updated plans were
submitted and reconsidered the position.
In April 1994, the Regional Administrator announced a 60-day comment
period to give members of the public an opportunity to provide their
views on the adequacy of the updated plans which are attachments to
WTI's RCRA permit and the need for revisions. These plans include
(1) the closure plan, (2) the contingency plan, (3) the waste
analysis plan, and (4) the employee training plan. In the
announcement, EPA Region V stated that it would evaluate the
information provided to determine whether cause exists for a permit
modification. It pointed out, however, that the regulations provide
EPA with the authority to modify the permit only under certain
circumstances, such as obtaining information not available at the
time of permit issuance that would have justified different permit
conditions at the time of issuance. The announcement stated further
that EPA was taking this action in response to expressed public
concern and to be consistent with the commitment it made in its
August 1984 Response to Comments. It also pointed out that providing
the comment period is consistent with the agency's May 1993 draft
combustion strategy.
AGENCY CONSIDERS EXPANDING
OPPORTUNITIES FOR PUBLIC
PARTICIPATION
-------------------------------------------------------- Chapter 3:4.3
The permitting process, as it currently exists, provides for public
involvement at the end of the initial permitting process and at the
time the permittee requests a permit modification. In the initial
permit approval process, public participation is provided only after
EPA has reviewed the information the applicant provided and made a
tentative decision to approve it. The fact that the opportunity for
public involvement is provided only after EPA has made a tentative
decision to approve it may give the appearance that EPA is unlikely
to give due consideration to other views or that EPA and the
applicant are jointly defending the agency's tentative decision to
approve the permit.
In May 1993, the EPA Administrator announced a new draft strategy for
strengthening federal controls governing hazardous waste incinerators
and boilers and industrial furnaces. One of the actions indicated in
this strategy is to provide for greater public involvement
opportunities in the RCRA permitting process for these facilities.
As part of a rule-making process, EPA is evaluating possible
proposals to expand public participation in areas such as application
submittal, draft trial burn plan, and draft risk assessment. In
addition to this proposal, in September 1993 EPA issued a RCRA public
involvement manual that provides information on how to carry out
required public involvement activities and describes other techniques
beyond the requirements that staff can use to more effectively
involve the public in the RCRA permitting process.
Critics of the WTI permitting process have said that EPA considers
WTI its client and that EPA has defended WTI's position in approving
the permit. Thus, the proposal to provide for public participation
at the time an application is submitted could reduce the impression
that the agency and the applicant are jointly defending the
application. Neither the proposal nor existing regulations, however,
currently include guidance on the level of public participation that
should be provided when either the permittee does not follow the
regulatory requirements for permit modifications or updated
information is required to be submitted later as a condition of the
permit.
EPA REGION V FOLLOWED
REGULATIONS IN PROCESSING SPRAY
DRYER MODIFICATION
---------------------------------------------------------- Chapter 3:5
In October 1990, just before beginning construction, WTI requested a
Class 2 permit modification to add a spray dryer--a piece of
pollution control equipment--to its incineration system. Partly on
the basis of the amount of public interest expressed in the proposed
modification, EPA later elevated WTI's permit modification request to
a Class 3 modification, requiring EPA to prepare a draft permit
showing the changes that would be required in the permit and
obtaining public comment on both the permittee's proposed
modification and the agency's draft permit. In February 1992, EPA
Region V approved the modification. Because the decision was
appealed by several individuals, environmental groups, the state of
West Virginia, and the city of Pittsburgh, the matter was referred to
the Environmental Appeals Board for resolution. On July 24, 1992,
the Environmental Appeals Board upheld the region's decision to issue
the spray dryer modification.
Several issues were raised about this permit modification and EPA's
processing of it. First, some critics claim that EPA did not make
clear the extent to which the addition of the spray dryer required
changes to be made in the entire incineration system. Second, some
claim that EPA accepted information provided by WTI on the spray
dryer's potential impact on emissions without doing any independent
analyses. Finally, some stated that EPA did not fully consider the
testimony and comments provided by experts on the potential for the
spray dryer to result in increased emissions of mercury and dioxins,
among others.
EPA DETERMINED THAT ADDITION
OF SPRAY DRYER IS A MAJOR
PERMIT MODIFICATION
-------------------------------------------------------- Chapter 3:5.1
Critics of EPA's processing of the permit modification to add a spray
dryer to its incineration system have said that neither WTI nor EPA
made clear that the addition of the spray dryer would require the
entire system to be redesigned and reengineered. In addition, some
have said that because the system with the spray dryer added was so
different from the one originally permitted, the entire permit should
have been reopened and evaluated.
RCRA regulations establish certain conditions under which a permit
may be revoked, but the extent of permit modification is not a
condition addressed. According to EPA Region V officials, they were
not aware of any instances in which the extent of a proposed permit
modification had ever been used as a basis to revoke a permit. The
regulations, however, do establish classes of permit modifications on
the basis of the extent of changes being requested.
Before formally submitting its request for a permit modification, WTI
had corresponded with EPA about the possibility of adding a spray
dryer to its permitted incinerator system. On the basis of
information WTI had submitted to EPA earlier that year, EPA Region V
informed the WTI Project Manager in August 1990 that because the
addition of a spray dryer to the incineration system causes gas flow
rate and temperature changes throughout the entire incineration
system, the addition would be considered a major permit modification,
that is, either a Class 2 or Class 3 modification.
On October 29, 1990, WTI formally submitted its permit modification
request to add the spray dryer to the incinerator's pollution control
equipment. According to WTI, the purpose of the spray dryer was to
reduce the contaminated liquid to a dry salt, making it much easier
and safer to handle. It stated that the only result would be an
increase in the amount of water vapor in the flue gas that exits the
stack. It further stated that the spray dryer would not result in
any changes either in the waste that can be processed at the facility
or the performance of the facility. According to WTI, permitted
contaminant emissions from the incinerator would not increase and the
incinerator would continue to meet permitted emissions limits.
Because the requested changes would have no effect on the wastes
processed, the performance of the facility, or permitted contaminant
emissions, WTI requested that it be considered a Class 2
modification. As required by RCRA regulations, WTI announced and
provided a 60-day public comment period between November 2, 1990, and
January 2, 1991, and also held a public meeting on November 19, 1990.
Although WTI asked EPA to consider its request to add the spray dryer
as a Class 2 modification, after WTI had held the public information
meeting and the public comment period as required for Class 2
modifications, EPA Region V advised WTI in February 1991 that on the
basis of expressed public interest in the proposed modification, the
agency was considering elevating WTI's request to a Class 3
modification, which it later did. This classification is used for
processing major permit modifications and provides the highest level
of public participation in the EPA decision-making process.
According to the August 1991 EPA fact sheet on the proposed
modification, the purpose of the Class 3 modification process was to
provide interested parties an opportunity to evaluate the permittee's
ability to comply with the applicable regulations on the modified
portions of the permit. Also as required by the regulations, EPA
provided a 60-day public comment period and set a date for a public
hearing on the proposed modification.
We found that in processing WTI's request to add the spray dryer to
its incineration system, EPA followed its regulations on the
information it provided to the public. As required for a Class 3
modification, EPA prepared a draft permit showing changes, including
both new permit conditions and modifications to existing permit
conditions, that EPA was proposing if the requested modification was
approved. EPA, however, did not make public all information related
to the spray dryer modification. EPA determined at WTI's request
that certain details on the modification, such as process flow
diagrams, were confidential business information because they
involved trade secrets. We reviewed EPA's Region V approval of WTI's
requests for confidentiality and found that EPA Region V had followed
the agency's procedures for making such determinations.
EPA REQUIRES THAT SPRAY
DRYER ADDITION NOT ADVERSELY
AFFECT EMISSION LIMITS
-------------------------------------------------------- Chapter 3:5.2
Some critics stated that EPA Region V did not fully or properly
analyze the spray dryer's impact on emissions. RCRA regulations
require that an incinerator be designed, constructed, and maintained
so that it will meet specific performance standards, such as the
99.99 percent destruction and removal efficiency for certain waste
components. The regulations do not require EPA to do an independent
analysis of the information provided by the permittee. According to
EPA regional officials who were involved in processing the permit
modification to add the spray dryer, the information WTI provided was
reviewed and determined to be reasonable on the basis of the regional
officials' professional engineering judgment. They pointed out,
however, that ultimately WTI would have to prove through the trial
burn that the incinerator's technology could meet EPA's performance
standards, as stated in the RCRA permit.
Because the regulatory requirements for hazardous waste incinerators
are performance-based, EPA reviews the expected performance of the
system as a whole rather than as individual pieces of equipment.
Thus, when Region V reviewed the proposed addition of the spray dryer
to the incineration system, it considered the effect of the spray
dryer together with the other equipment. In its February 1992
response to public comments on the permit modification to add the
spray dryer, EPA Region V stated that it had reviewed the permit
modification request and determined that although the spray dryer
could increase emissions if operating conditions for the air
pollution control equipment remain unchanged, WTI could control other
emissions so that the spray dryer's overall impact on emissions would
be negligible. It stated, however, that this determination would be
verified by the trial burn.
EPA CONSIDERED TESTIMONY OF
EXPERT WITNESSES
-------------------------------------------------------- Chapter 3:5.3
Some critics of EPA's approval of the permit modification to add the
spray dryer have also said that the agency did not fully consider the
testimony of witnesses who claimed that the addition of the spray
dryer would increase emissions, particularly of mercury and dioxin.
Our review of EPA's February 1992 Response to Comments shows that EPA
did respond to comments on the potential for the spray dryer to
increase emissions.
The expert witnesses of the opponents concluded that because of the
"closed loop" nature of the proposed spray dryer's design and
operation, once the scrubber water has become concentrated with
condensable organics and metals to a breakthrough point (equilibrium
or steady state), the stack emissions would increase. In its
February 1992 Response to Comments, EPA did not dispute that the
spray dryer's use of scrubber water would potentially increase the
dust and organic loadings into the air pollution control system and
subsequently into the stack emissions.
EPA further stated, however, that the issue was whether the total
emissions through the stack will be at the level allowed by WTI's
permit. EPA said that to determine total emissions, other factors
must be considered. These factors include waste feed rates;
incinerator operating conditions, such as pressure and temperature;
and waste feed characteristics, such as ash and metal content,
physical and chemical properties, and heating value; and air
pollution control equipment operating conditions. Finally, EPA
stated that WTI must comply with the more stringent emissions
requirements stipulated in the modified permit. To determine this,
the facility would have to conduct emissions testing under
steady-state conditions with maximum feed rates, as required by an
approved trial burn plan. Specifically, EPA stated that the organic
and mercury conditions under steady state would be measured during
the trial burn to determine the effectiveness of constituent removal
and whether the emissions exceed the regulatory limit. It stated
that under no circumstances would emissions be allowed to pose a
threat to human health and the environment. It further stated that,
for example, if the trial burn results showed that the regulatory
limits for mercury were exceeded, mercury input into the incinerator
could be restricted as one of the permit conditions. (Mercury and
dioxin emissions resulting from the trial burn are discussed in
chapter 5.)
RCRA PERMIT'S EXPIRATION DATE
---------------------------------------------------------- Chapter 3:6
Concern has been raised about the correct expiration date for WTI's
federal RCRA permit. The confusion over the correct date was caused
by appeals of the permit after it was initially issued and actions
taken by WTI's attorney.
WTI's federal RCRA permit expires on January 25, 1995. The permit
was originally issued by EPA on June 24, 1983. Under EPA's
regulations, the effective date of the permit is 30 days later,
unless the permit is appealed. In this case, the permit was
appealed, staying its effective date. The Administrator of EPA
denied all of the appeals on December 17, 1984, and directed Region V
to issue a final permit decision. On January 25, 1985, the Regional
Administrator sent a letter to WTI stating that the permit was
effective on that date. The permit specifies that it is effective
for 10 years, the maximum period under RCRA regulations.
WTI's attorney wrote to EPA stating that EPA had not changed the date
on the permit cover sheet to reflect the correct issuance and
termination dates and requested EPA's confirmation of the correct
termination date. EPA responded that such a change needed to be done
as a Class 1 modification. Although WTI subsequently applied for a
Class 1 modification, EPA did not process the modification because
its advice that a Class 1 modification was required had been
incorrect.
In WTI's June 17, 1991, request for the modification, its attorney
"whited out" the effective and expiration dates on the cover sheet of
the permit and changed them to the January 1985 and 1995 dates. The
attorney sent the cover sheet to EPA with a letter explaining that he
had followed the RCRA regulation's procedures for Class 1
modifications. According to EPA, the attorney's letter is not part
of either the administrative record or the permit. The modification
of the permit was accomplished by the Regional Administrator's
January 25, 1985, letter, which should have been accompanied by a new
cover sheet. Accordingly, the attorney's letter has no legal effect.
On February 3, 1992, a new cover page was issued by Region V. We
agree with EPA that the "whited out" changes made to the cover sheet
by WTI's attorney had no legal effect on the permit.
OHIO EPA CONSIDERS EFFECTS OF
CONSTRUCTION ON EXISTING SITE
CONTAMINATION
---------------------------------------------------------- Chapter 3:7
Evidence shows that the soil and groundwater on a portion of the WTI
site is contaminated with various hazardous wastes, as a result of
spills that allegedly occurred there in 1983 and 1984 when the
property was used by another company.
In 1990, individual citizens, citizens' organizations, and others
began to express concern that the construction activities or
techniques used at the WTI site would result in the contaminants
being released, adversely affecting human health and the environment.
Specifically, those concerns were that grading and excavation on the
site could result in contaminants being released into the air and the
Ohio River and that piles used to support structures being built on
the site and driven to bedrock in areas where contaminants were
detected could provide a pathway for downward contaminant migration,
particularly into the aquifers running beneath the site.
Because the contamination did not occur until after WTI's application
had been submitted to EPA and Ohio EPA and both agencies had held
public hearings on the proposed application, these concerns were not
an issue and thus were not addressed by either the federal or state
permitting agencies during the permitting process.
These concerns were addressed in 1990, however, by the Ohio EPA
Division of Emergency and Remedial Response. The division conducted
a preliminary investigation of the site, reviewed the information and
data obtained from all investigations at the site, and concluded that
the release of hazardous constituents from the site did not present
an imminent threat requiring the agency to take an emergency action
and that no evidence was found that WTI's planned construction would
contribute to any additional release of contaminants into the
groundwater or the Ohio River. It also concluded that the planned
development of the site would not preclude the installation,
operation, and maintenance of an adequate groundwater remediation
system at the site.
SITE WAS CONTAMINATED BY A
BULK STORAGE AND TRANSFER
FACILITY
-------------------------------------------------------- Chapter 3:7.1
When WTI submitted its original applications to the federal and state
EPAs in 1981, a portion of the land on which it was proposing to
build its hazardous waste incinerator was being leased by the
Columbiana County Port Authority to Charter International Oil Company
(Charter Oil), which operated a bulk storage and transfer facility on
the site. During its operations, Charter Oil received solvents,
including acetone, toluene, xylene, and "mineral spirits," which were
transferred from river transport ships to storage tanks and then into
tanker trucks for distribution. Charter Oil continued to lease the
property from the Port Authority until May 1984. Later that year,
the storage tanks and the transfer pipeline were dismantled and
removed.
The exact date when the site first became contaminated is not known,
but the federal and state EPAs became aware of potential
contamination at the site in June 1984. In that month, a federal
investigation of an alleged theft of 200,000 gallons of solvent from
the facility revealed that the pipelines leading from the storage
tanks to the truck loading area were severely corroded, indicating
the possibility of numerous spills. In addition, during that
investigation, a former site manager for Charter Oil told
investigators that in the spring of 1983 about 19,000 gallons of
xylene had been released into the environment when a crack developed
in a xylene storage tank.
After receiving notice of the alleged release, EPA Region V and the
Ohio EPA conducted a preliminary site investigation at the Charter
Oil facility in July 1984. Analysis of groundwater taken from a well
drilled near the former xylene storage tank at the facility during
this investigation indicated the presence of xylene and toluene. The
investigation also revealed that although an earthen dike which
surrounded the 10 above-ground storage tanks was able to prevent a
direct discharge into the Ohio River, it was not sufficiently
impervious to prevent the migration of chemicals released onto the
ground. Finally, on the basis of a December 1984 investigation, an
EPA consultant stated in an April 1985 site assessment report that a
leak had resulted in a suspected release of about 33,000 gallons of
mineral spirits into the environment in the spring of 1984.
Subsequent site investigations further delineated the nature and
scope of contamination at the site. Monitoring wells installed at
the facility in 1985 and 1987 indicated both groundwater and soil
contamination as well as contaminants floating on the groundwater.
In addition to the xylene and toluene identified by the Ohio EPA
investigation, the subsequent investigations also found other
contaminants, including benzene, ethylbenzene, and acetone in
groundwater and soil samples collected at the site. These
contaminants are considered to be industrial wastes, hazardous
wastes, or hazardous substances under either federal or state law.
STUDIES DEFINE NATURE AND
SCOPE OF SITE CONTAMINATION
AND RECOMMEND REMEDIAL
ACTION
-------------------------------------------------------- Chapter 3:7.2
Studies of the site conducted between 1985 and 1990 show that the
site is underlain by two relatively distinct units of river soils.
The first unit, nearest the surface, consists of dense silt and sand.
Beneath this unit is a sand-and-gravel unit, followed by sandstone
bedrock.
Groundwater occurs in both the silt-and-sand and sand-and-gravel
units. Groundwater movement in the silt-and-sand unit is generally
downward into the sand-and-gravel unit. Groundwater movement in the
sand-and-gravel unit is generally toward the Ohio River, and during
most of the year this groundwater discharges to the river. The
groundwater found in this layer is also referred to as the
sand-and-gravel aquifer. Another aquifer is found in the sandstone
bedrock.
A December 1985 study of the hydrogeologic and groundwater quality
conditions at the proposed WTI facility, which was done for one of
the WTI partners, found toluene, xylene, ethylbenzene, and other
unspecified petroleum distillates in the groundwater obtained from
monitoring wells drilled around the tank farm of the Charter Oil
facility. This study identified contaminants floating on the
groundwater and dissolved contaminants in the sandy soil, but the
study stated that the information obtained was not sufficient to
fully delineate the contamination present. It did state, however,
that further contaminant migration could be prevented if a remedial
strategy were implemented at the site.
A March 1990 study was done for WTI by a private contractor to
develop a plan for removing the contamination. The study, which was
based on May 1987 sampling at the site, further delineated the
contamination. The study found that xylene and ethylbenzene were the
most prevalent compounds, accounting for more than 75 percent of the
compounds detected. Benzene, a known carcinogen, was detected at low
levels in 3 of the most heavily contaminated wells of the 23
monitoring wells at the site. In addition, localized concentrations
of acetone were also reported.
The 1990 study estimated the total volume of contaminants to be about
8,500 gallons. It found that the contamination consisted of (1) free
product floating on the groundwater, (2) dissolved hydrocarbons in
the groundwater, and (3) hydrocarbons in liquid, vapor, and adsorbed
phases in the soil. The study estimated that 5,510 gallons, about 61
percent, of the total site contamination existed in a thin (from a
trace to less than 4 inches) free-product layer floating on the
groundwater. The study found that about 105 gallons, or less than 1
percent of the site contamination, was in the form of dissolved
hydrocarbon contamination. Finally, it estimated that the volume of
petroleum products contained in the soils was 3,225 gallons, or about
38 percent of the contamination.
The contractor who prepared the March 1990 study also carried out a
site investigation in March 1990. The results of this investigation,
included as a May 1990 addendum to the March 1990 study, showed that
groundwater contamination had diminished since the 1987 sampling was
done. It also reported that no detectable concentrations were found
in the deeper monitoring wells, indicating that the contamination
occurs mainly in the shallow sediments. According to the report,
these data indicate that natural flushing processes are working to
remove the groundwater contamination at the site. Because the
groundwater discharges to the Ohio River, this flushing process
includes discharges into the Ohio River.
The addendum also compared the concentration of four
contaminants--benzene, toluene, ethylbenzene, and xylene--found in
this sampling with EPA's drinking water standards for these
contaminants and found that the groundwater samples in 4 of the 22
monitoring wells sampled, all in the vicinity of the former tank
farm, exceeded the standards. In addition to the above four
contaminants, acetone, trimethylbenzene, and trichloroethylene were
also found in the groundwater samples.
In addition, the March 1990 study recommended a site remediation plan
and recommended that remediation focus on cleanup of the groundwater
at the site and that the soils not be actively remediated because of
WTI's planned construction activities. It also reported that the
construction of the remedial action system should impose few
constraints on site development. Specifically, the study's proposed
remediation objectives included (1) removing the free product
floating on the groundwater, (2) reducing the dissolved contaminant
concentrations to below 10 parts per million, and (3) minimizing the
off-site migration of contaminated groundwater. The study estimated
that removing the free product would take about 2 years and removing
the dissolved contaminant would take about 4 years after design and
construction of the system was complete. By removing the free
product and reducing the dissolved contaminant concentrations, the
off-site migration of the contaminated groundwater will be minimized.
It estimated that remediation of the site--including the design,
construction, and testing of the system--could be completed in about
50 months and that post-remediation monitoring at the site would
continue for an additional 10 years.
POTENTIAL EFFECTS OF WTI
CONSTRUCTION ON SPREAD OF
CONTAMINATION AND FUTURE
REMEDIATION CONSIDERED BY
OHIO EPA
-------------------------------------------------------- Chapter 3:7.3
Although the site contamination was not considered by the federal and
state agencies during the permitting process, the Ohio EPA Division
of Emergency and Remedial Response did consider whether the
construction activities and techniques planned at the site could
cause the contamination to spread to other unaffected areas. The
division had been involved in evaluating the site since the alleged
spills were reported in June 1984. Thus, at the time that WTI was
ready to begin constructing the facility in 1990, the division had
conducted a site investigation that confirmed the groundwater
contamination; completed a preliminary assessment of the site;
requested the Port Authority to carry out a site investigation to
determine the nature and extent of the contamination; and had begun
negotiating with the Port Authority and WTI for remediation of the
site.
A May 1990 Ohio EPA report stated that all site investigations had
shown that the site is contaminated with organic hazardous
constituents. However, the report stated that it had not found any
evidence or reason to assume that the construction activities planned
for the WTI site would contribute to an additional release of
contaminants to the groundwater or the Ohio River. According to the
report, the placement of fill material and the installation of
concrete pads and containment structures planned at the facility
would reduce the rate of precipitation infiltration and runoff into
the contaminated groundwater, thereby potentially reducing the rate
of contaminants migrating to the Ohio River. It also concluded that
the construction activities would not preclude or hinder the
implementation of remedial activities at the site.
With respect to the concern that pile driving to bedrock in areas
where contaminants were detected could provide a pathway for
contaminant migration as the pilings are pushed downward, the March
1990 study done for WTI stated that these piles may offer a limited
migration path but that contaminants had already been detected in the
lower parts of the aquifer and the pile driving was not likely either
to increase the contaminant levels or to introduce any new types of
contaminants. According to an Ohio EPA official, they had reviewed
the information contained in this report and determined that because
of the nature of most of the contaminants identified at the site
(that is, they are lighter than water and thus float in free form on
top of the groundwater), the pilings driven to bedrock would not
increase the level of contamination in the groundwater. This
official also said that although monitoring done at the site since
1987 has identified contamination in the shallower aquifer beneath
the site, no contamination of the deeper aquifer located in the
sandstone bedrock beneath the site has been found either during
initial site investigations or in the groundwater monitoring reports
that are required by WTI's state hazardous waste facility permit.
With respect to the allegation that the contamination represented an
imminent threat to human health and the environment, the May 1990
report stated that because groundwater data from the site indicate
that groundwater flow and contaminant migration is toward the Ohio
River, contaminant release to the river was likely. It reported that
contamination of the groundwater at the WTI site represented a
release of hazardous constituents to the waters of the state subject
to state law. (Unpermitted discharges of such hazardous constituents
to waters of the state are a violation of state law.) The report also
stated that although an ongoing, unquantifiable release of hazardous
constituents to the Ohio River is highly probable, no evidence was
available to indicate that either any violation of state water
quality standards or drinking water standards in any public water
supply had occurred. It also reported that no known water supply
wells used the affected aquifer and that the exposure of nearby
populations to either the contaminated soil or groundwater was
minimal. Finally, the report stated that the presence of hazardous
constituents in the groundwater and soils at the site represented a
condition subject to the remediation requirements of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 and that the Port Authority and WTI's remediation proposal
appeared to be a reasonable response to the risks associated with the
site.
During the remainder of 1990, the division reviewed the studies
submitted by the Port Authority and WTI to determine whether proper
data collection and analytical methods were used to assess the nature
and extent of contamination at the site. In January 1991, it
reported that as a result of its preliminary review, it had
determined that the contamination was not an imminent threat
requiring emergency action by Ohio EPA. It stated further that
construction of the WTI facility would not preclude the installation
and maintenance of a groundwater remediation system at the site and
that the agency was in the process of negotiating a cooperative
consent agreement with the Port Authority and WTI. The final
agreement between Ohio EPA and the Port Authority became effective in
November 1991. Although Ohio EPA approved a workplan for the site
remediation in March 1992, as of October 1993 WTI has not received
approval of a required wastewater discharge permit from the Ohio EPA,
and thus remediation work has not begun.
CONCLUSIONS
---------------------------------------------------------- Chapter 3:8
EPA generally followed the RCRA requirements, but in some cases it
did not follow its own regulations and procedures: (1) It issued
WTI's permit without obtaining the landowner's signature; (2) EPA
Region V did not provide the state of West Virginia with proper
information during a public comment period on WTI's original
application; and (3) EPA Region V did not require WTI's permit
application to include an engineering analysis to show that the
facility and its flood protection devices could withstand the forces
of a flood. In addition, EPA's regulations do not include executive
order floodplain requirements. Finally, in those cases in which the
regulations do not provide specific guidance, EPA Region V has not
consistently provided opportunities for public participation in the
permit decision-making process. RCRA regulations do not ensure that
the public will have an opportunity to participate in EPA permitting
decisions that could affect them and are not consistent with certain
floodplain requirements in the federal executive order. None of
these conditions, however, would require EPA to terminate WTI's
permit.
RCRA regulations do not provide guidance on whether opportunities for
public participation should be provided under certain circumstances
that the region has encountered. In the absence of regulatory
guidance, the Regional Administrator has discretion in deciding
whether to provide an opportunity for public comment. Generally,
under those circumstances, Region V has provided opportunities for
public participation. For example, Region V did provide an
opportunity for public comment when WTI failed to give EPA 90 days'
advance notice, as required by regulation, of what EPA considered a
change in the facility operator. In another case, however, EPA did
not provide an opportunity for public participation before it
approved updated trial burn, waste analysis, and contingency plans
WTI was required to submit as a condition of its permit. In response
to public concern, EPA is now providing a comment period for all
plans that are part of WTI's permit.
As part of EPA's present efforts to provide for greater public
involvement opportunities in the RCRA permitting process for
hazardous waste incinerators, we endorse a proposal being considered
as part of the agency's draft combustion strategy to obtain public
comments when the permit application is first submitted to the agency
for review. However, this proposal does not include providing
opportunities for public participation when either the applicant
fails to follow the procedures prescribed in the regulations or when
significant updated information, such as the various plans included
in a permit, is required to be submitted as a condition of the permit
after it is issued.
With respect to the floodplain issue, EPA did not evaluate whether
the WTI facility could have been located outside the floodplain.
Moreover, RCRA regulations do not include the federal executive order
requirement to conduct a practicable alternative analysis. Although
EPA considered the executive order when it was developing its RCRA
regulations, it decided not to include the practicable alternative
analysis on the basis of policy considerations. EPA determined that
its regulations satisfied RCRA, while being consistent with the
executive order. EPA did not, however, address whether its
regulation fully satisfied the executive order's requirement or its
obligation under the executive order to include a practicable
alternative analysis. By not incorporating this requirement into its
regulations, EPA missed the clear preference of the executive order
to avoid floodplain development. In addition, the practicable
alternative analysis would not have limited EPA's discretion to
determine that a proposed location was the only practicable
alternative for a hazardous waste facility. Thus, EPA should
reconsider the need for including a practicable alternative analysis
in its RCRA floodplain regulations.
In addition, the level of flood protection that is required under the
RCRA regulations is not consistent with the guidance for implementing
the executive order. That guidance states that for critical federal
actions, which include hazardous waste activities, the 500-year
floodplain should be used instead of the base, or 100-year,
floodplain.
In October 1993, EPA announced plans to issue a notice of proposed
rule-making on new location standards. The announcement states that
EPA's goals for the standards is to ensure siting of new hazardous
waste treatment, storage, and disposal facilities in the most
suitable locations. This rule-making effort provides EPA with an
opportunity to strengthen its existing floodplain regulations.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 3:9
We recommend that the EPA Administrator amend the RCRA regulations to
(1) incorporate the alternative site analysis requirement of
Executive Order 11988 and (2) require that the 500-year floodplain be
used instead of the 100-year floodplain.
In addition, we recommend that the EPA Administrator request that the
EPA staff who are currently developing proposals as part of the
agency's draft combustion strategy establish guidance on conditions
or circumstances for which opportunities for public participation
should be provided beyond the present regulatory requirements,
including situations in which the permittee does not follow the RCRA
permit modification requirements and when significant updated
information is required to be submitted as a condition of the permit
after the permit is issued.
AGENCY COMMENTS
--------------------------------------------------------- Chapter 3:10
EPA agreed with our recommendations that it amend the RCRA
regulations to require that (1) an alternative site analysis be
conducted during the permitting process consistent with Executive
Order 11988 and (2) the 500-year floodplain be used instead of the
100-year floodplain. EPA further states in its comments on a draft
of this report that efforts are under way to evaluate an array of
siting restrictions in geologically sensitive areas.
EPA agreed with our recommendation that it establish guidance on the
conditions or circumstances for which opportunities for public
participation should be provided beyond the present regulatory
requirements. In commenting on a draft of this report, EPA stated
that it has taken substantial steps toward ensuring full public
participation in the RCRA permitting process, including the specific
cases we cited. EPA also stated that it will prepare additional
guidance for its regional offices and authorized states to identify
specific situations in which additional opportunities for public
participation may be desirable as a result of changed circumstances
during the life of the permit.
NO UNRESOLVED CONCERNS ABOUT WTI'S
AIR AND WATER PERMITS UNCOVERED
============================================================ Chapter 4
The state of Ohio processed, approved, and issued the air and water
permits for WTI's hazardous waste incinerator. U.S. EPA's oversight
of these air and water permits was limited because Ohio EPA
classified WTI as a minor source of air pollution emissions and a
minor water discharger. In recent years, concerns have been raised
about whether WTI was correctly classified as a minor source of air
pollution emissions and whether its air permit was valid. We
determined that the air permit issued by Ohio EPA was valid.
Concerns also have been raised about the amount of lead emissions
allowed in the air permit, but because WTI's RCRA permit also sets
lead emissions limits, and at much lower levels, the facility will
have to adhere to this more stringent standard. Additionally,
changes in WTI's water collection and treatment techniques have
eliminated the need for treating and discharging contaminated water
off-site.
ISSUES RELATING TO THE AIR
PERMIT APPEAR TO BE RESOLVED
---------------------------------------------------------- Chapter 4:1
Ohio, which was approved in 1980 by EPA to issue and administer its
air permits program, has issued two air permits to WTI. The first
was a 1983 permit-to-install, which was required to begin
construction of the plant. The second was a 1992 permit-to-operate,
allowing initial limited operation of the plant.
For purposes of its air permit, WTI was classified by Ohio as a minor
source of pollution emissions. A source is considered "minor" if its
emissions are projected to be less than certain limits. The
threshold limits depend on whether or not the air quality in the
county in which the construction is proposed meets National Ambient
Air Quality Standards, for any of the six criteria pollutants
(particulate matter, sulfur dioxide, carbon monoxide, ozone, nitrogen
dioxide, and lead). A hazardous waste incinerator is a major emitter
if it has the potential to emit more than 250 tons per year of any
criteria pollutant whose levels in the county do not exceed air
quality standards, or 100 tons per year for those pollutants whose
levels exceed standards.
As part of its responsibility to oversee Ohio's air program, EPA
Region V receives copies of all permits issued by Ohio for review but
does not review all permits in depth because of the large number of
permits that are issued. EPA's permit reviewers concentrate on major
sources and certain categories of minor emitters. EPA maintains
limited oversight of Ohio's air permits issued to minor sources.
From 1983 to early 1988, EPA relied on its yearly audits performed at
various Ohio state offices to review minor permits. EPA no longer
conducts on-site audits and instead now requires states to send in
additional information to enable it to more thoroughly review the
draft permits. However, EPA still relies on the states to issue and
manage most of the minor permits.
Concerns have been raised by opponents of the incinerator and by EPA
about whether WTI's classification by Ohio EPA as a minor source was
correct and whether its air permit-to-install was valid. If WTI was
a major source, it would not have been allowed to be constructed in
the East Liverpool area because the county exceeded federal air
quality standards and was under a federal construction ban.
Additionally, opponents are concerned about the amount of permitted
lead emissions and the potential health hazard that the lead
emissions may pose to the community.
WTI IS A MINOR SOURCE OF AIR
POLLUTION, AND ITS
PERMIT-TO-INSTALL IS VALID
-------------------------------------------------------- Chapter 4:1.1
One of the principal supports for opponents' contention that WTI's
permit-to-install is not valid is a 1987 letter from an EPA Region V
official to Ohio EPA stating his opinion that WTI was not a minor
source and that its permit was invalid. Although Ohio EPA had
earlier determined that WTI was a minor source, in 1987 EPA
determined that because the emissions limits set in the permit were
annual, they could not be monitored on a short-term basis and were
therefore not "federally enforceable." EPA consequently recalculated
emissions levels in the 1983 permit on the basis of continual
operation, which then resulted in certain emissions rising above the
limits allowed for minor sources. EPA therefore concluded that the
1983 permit was not valid because it would result in the source being
a major source and would allow a major source to be constructed in
violation of the federal construction ban that was in effect in East
Liverpool. However, EPA made some errors in its 1987 calculations
and used criteria that were not in effect at the time the
permit-to-install was issued in 1983. Subsequently, EPA agreed with
Ohio EPA that EPA had made errors in its 1987 calculations, that WTI
was a minor source, and that WTI's 1983 permit was valid.
In 1983, Columbiana County did not meet the National Ambient Air
Quality Standards for particulate matter, sulfur dioxide, and ozone.
In addition, the area was under a federal ban on construction of new
major sources, imposed by EPA, because Ohio did not have an approved
plan demonstrating how the standard for particulate matter would be
attained. Ohio EPA determined that WTI was a minor source on the
basis of conditions in the permit limiting the annual emissions below
the threshold level that would make the facility a major source. The
emissions limits for particulates and sulfur dioxide were set at 78.7
and 99.8 tons per year, respectively, and the permitted limits for
the other criteria pollutants were below 250 tons per year. Since
ozone is not emitted, but formed from the interaction of compounds in
the atmosphere, it is not directly controlled by permit.
Ohio EPA approved WTI's air permit-to-install in 1983, limiting the
incinerator's operations to a maximum of 8,100 hours per year (about
92 percent of the year), allowing for downtime for maintenance and
repair. An Ohio EPA official stated that the agency set the
operating hour limitation in 1983 at 8,100 hours per year on the
basis of industry standards. In November 1982, EPA had provided
comments to Ohio EPA on the draft permit-to-install and recommended
that Ohio approve the permit-to-install. Although EPA was late in
responding, its comments included asking for more clarification of
emissions limitations for sulfur dioxide, questioning the use of
30-day rolling averages for measuring sulfur dioxide emissions, and a
discussion of the modeling analysis that had been submitted. Ohio
EPA responded to all of EPA's comments in February 1983, and no
changes were made to the permit-to-install. EPA did not comment on
the permit-to-install again until 1987.
At the request of a potential buyer for the WTI facility, EPA
reviewed the air permit-to-install in 1987. In evaluating the
permit-to-install, EPA used its current and proposed guidance on
limiting a source's potential to emit. According to the guidance,
annual emissions limits, such as those in WTI's permit, are not
"federally enforceable" as required, because they are not capable of
being monitored on a short-term basis. Thus, the annual emissions
limits were not acceptable for limiting the facility's potential to
emit. The proposed guidance, which was adopted in 1989, stated that
when a permit contains no limits on hours of operation that can be
monitored, the emissions limits must be based on a plant operating 24
hours a day for 365 days a year (8,760 hours). EPA therefore
recalculated WTI's potential emissions using the same hourly
emissions rates, but assuming that the facility would operate 8,760
hours a year rather than 8,100. EPA's new calculations showed that
for several pollutants (total suspended particulates, sulfur dioxide,
and nitrogen oxides), WTI could exceed the threshold limits for minor
sources.
Accordingly, EPA informed Ohio EPA in 1987 that the permit was not
valid for the construction of a minor source. EPA stated that for
the permit to be valid as a minor source, the emissions rates must be
reduced and/or the hours of operation must be lowered so that, when
computed over the course of 1 year, the required rate of emissions
multiplied by the permitted annual hours of operation result in total
emissions less than the threshold level for a major source.
Furthermore, the permit limitations must be capable of being
monitored in time periods which allow them to be federally
enforceable. EPA stated that the appropriate unit of time for
purposes of federal enforcement in this situation would be 1 week.
Ohio EPA officials found errors in EPA's calculations. These
officials stated that they informed EPA of the errors in a September
1987 letter and that the emissions limits were in compliance with the
1983 permit-to-install. In addition, although EPA was concerned
about the federal enforceability of the permit-to-install, Ohio EPA
pointed out that it was a valid Ohio permit and fully enforceable by
Ohio EPA. Ohio EPA also pointed out that because there were no
approved federal requirements or guidelines requiring the use of
8,760 operating hours per year in 1983, Ohio EPA had complied with
existing federal guidelines and Ohio law. After receiving no further
response from EPA that WTI's permit-to-install was invalid, Ohio EPA
considered the matter to be resolved and made no changes to the
permit-to-install.
It was not until 1991 that EPA reexamined the permit-to-install and
again questioned its validity for the same reasons stated in its 1987
letter to Ohio EPA. Ohio EPA restated its 1987 position with respect
to the lack of federal guidelines in 1983 and that EPA had made
errors in calculating the emissions. However, in 1992 Ohio EPA
modified the air permit-to-install to, among other things,
incorporate the 1989 federal guidance changes in total operating
hours by reducing the hourly emissions rates, and to require
continuous emissions monitoring. The permitted operating hours,
however, remained at the 1983 level of 8,100 hours per year. The
reduction in hourly emissions rates effectively reduced the permitted
emissions for sulfur dioxide and nitrogen oxides an additional 8
percent. EPA officials acknowledged their mistakes and agreed with
Ohio EPA that the particulate rate could remain the same.
Despite the changes to the permit, EPA officials agreed that because
the guidelines that they used to evaluate the permit-to-install in
1987 had not been in effect in 1983, the permit remained valid. EPA
officials also agreed that they had made some errors in recalculating
WTI's permitted emissions, which were pointed out by the Ohio EPA.
Even if the guidelines could apply retroactively, EPA Region V
officials stated that EPA could not have successfully challenged
WTI's permitted operating hours in 1987. EPA stated that its
regulation governing permits issued pursuant to delegated programs
provide specific guidance for challenging conditions of permits.
This regulation, governing prevention of significant deterioration
(PSD) permits, provides that within 30 days after a final PSD permit
is issued, any person who filed comments on that draft permit or
participated in the public hearing may petition the EPA Administrator
or, in delegated programs, the head of the state agency to review any
condition of the permit decision. EPA officials stated that although
the permit issued to WTI was not a PSD permit, the same requirement
of a timely appeal would presumably apply in the case of WTI because
Ohio's authority to issue the permit was based on EPA's delegation of
its PSD program to Ohio.
EPA cited as precedent a federal district court case, Greater Detroit
Resource Recovery Authority (GDRRA) and Combustion Engineering, Inc.
v. Adamkus, No. 86-CV-72910-DT (E.D. Michigan, October 21, 1986).
In GDRRA, the state issued a permit to a source pursuant to a
delegation by EPA, as in the WTI case. The court held that when
there was neither fraud in the application for the permit nor
violation of the terms of the permit, EPA had no authority to revoke
a permit to which it failed to object during the 30-day public
comment period. EPA stated that following the precedent of GDRRA,
"EPA would not have prevailed in 1987 in an action against WTI to
revoke a permit issued in 1983, on the ground that the permit failed
to incorporate guidance issued after 1983." Thus, EPA could not have
forced changes in WTI's air permit-to-install for new guidance issued
after the permit had been issued.
EPA officials could not specifically state why these particular
issues raised in 1987 were not resolved until 1992. They said that
it was probably because of the large number of permits they process,
the lack of staff, and the lack of a formal policy to refer potential
violations to EPA's enforcement section. However, they stated that
their current practice is to refer all potential violations to the
enforcement group for action.
After reviewing agency files and interviewing officials at EPA, Ohio
EPA, North Ohio Valley Air Authority, and WTI, we agree with EPA that
WTI's 1983 permit-to-install as a minor source was valid.
AIR PERMIT LIMITS ON LEAD
EMISSIONS SUPERSEDED BY MORE
STRINGENT RCRA LIMITS
-------------------------------------------------------- Chapter 4:1.2
Some residents of East Liverpool and the health community have
expressed concerns about the amount of lead that the WTI incinerator
is permitted to release under its air permit. We found that the
original air permit's lead limits were not clearly written and could
be misinterpreted and that the limits on lead emissions in WTI's RCRA
permit are expected to be significantly more stringent than the
limits in the current air permit-to-install. EPA indicated that WTI
is required to meet the lower of the two emissions limits.
WTI's 1983 air permit-to-install set lead emissions limits at a
maximum of 4.7 tons per year for the two planned incinerators. In
reviewing the permit-to-install, we determined that its language
could be interpreted to mean that one incinerator could emit up to
4.7 tons of lead per year or that each incinerator could be limited
to a total of 2.35 tons per year.
Ohio EPA officials acknowledged that the original permit-to-install
may be subject to differing interpretations. However, they pointed
out that the permit-to-install limits were completely understood by
EPA, Ohio EPA, and WTI officials as limiting each incinerator to lead
emissions of 2.35 tons per year; these officials confirmed Ohio EPA's
account. Officials pointed out that this was Ohio EPA's first air
permit-to-install for a hazardous waste incinerator and that they
were not experienced at writing these types of permits.
WTI's November 1992 air permit-to-operate, issued by the Ohio EPA, is
specific about the amount of lead emissions allowed for the currently
built incinerator, at 1.07 tons per 180 days (approximately 2.14 tons
per year). However, lead is actually controlled by two permits, the
Ohio air permit-to-operate and the federal RCRA permit, and the
emissions limits differ in each.
Although the state air permit-to-operate limits WTI's lead emissions
to a maximum of 1.07 tons per 180 days, actual emissions will be more
strictly limited by the federal RCRA permit. An EPA Region V
official stated that EPA expects to limit WTI's lead emissions for
the existing incinerator to a maximum of 412 pounds per year, or
about 10 percent of the maximum allowed under the air permit.
However, EPA has indicated that the final lead emissions limit for
WTI will be established on the basis of the Phase II risk assessment
and other relevant information. Finally, WTI is required to meet the
lower of the emissions limits established by the two permits.
During the trial burn, EPA restricted WTI to burning waste containing
100.4 pounds of lead per hour. EPA found that the incinerator was
able to remove the lead so well that only .0097 pounds of lead per
hour was emitted from the stack during the trial burn, or about 2
percent of the maximum allowable under the air permit. However, an
EPA official stated that EPA may revise the lead emissions limits in
the permit after it sees the results of the Phase II risk assessment.
Finally, EPA has been evaluating whether to reduce the National
Ambient Air Quality Standards for lead for several years to further
improve air quality and meet or remain within acceptable standards.
However, an EPA official stated that because of significant
decreases--up to 98 percent--in levels of lead in the air, they do
not plan to change the current standards.
CHANGES IN WTI'S OPERATIONS
ELIMINATED NEED FOR DISCHARGING
WASTE WATER
---------------------------------------------------------- Chapter 4:2
Ohio EPA, which has had authority to issue and enforce federal water
discharge permits since 1974, issued two water permits to WTI. The
first permit was issued in 1983 as part of the air permit-to-install,
and the second was issued as a separate permit allowing the initial
limited operation. However, changes in WTI's water collection and
treatment techniques since the first permit was issued have generally
eliminated the need for treating and discharging contaminated water
off-site. In addition, WTI has applied for water permits as a first
step in the remediation of a spill at the WTI site caused by a
previous tenant, as discussed earlier.
EPA Region V maintains limited oversight of Ohio's water discharge
permits, especially when they are issued to minor dischargers. While
Region V receives copies of all permits for review, it does not do
in-depth review of all permits because of the large number of permits
that are issued. EPA spends most of its permit review manpower on
the major dischargers. According to a Region V official, they
usually review minor permits on a sample basis during audits of the
state program.
Because WTI was planning to discharge its waste water into the East
Liverpool sewage system, Ohio EPA considered but determined that a
separate water discharge permit-to-install was not necessary.
Instead, the agency decided that WTI only had to meet pretreatment
standards for its wastewater, and thus Ohio EPA included these terms
and conditions as part of the February 2, 1983, air
permit-to-install.
WTI was issued the second water permit, a final water discharge
permit (permit-to-operate), on October 30, 1991, allowing for the
discharge of noncontact water (water that has not been in contact
with hazardous waste) and rainwater into the Ohio River. WTI
segregates rainwater into three categories (A, B, and C) through the
use of curbs, dikes and ramps that are a feature of the facility's
design and construction. "A" water consists of storm water from the
roofs of buildings, grassy areas, and the employees' parking lot.
"A" water and noncontact cooling water are discharged directly to the
National Pollutant Discharge Elimination System (NPDES) permitted
outfall into the Ohio River. "B" water consists of storm water from
nonactive process areas such as roadways and the storm water storage
area. "B" water is discharged through the NPDES permitted outfall
only after sample and analysis of the "B" water tank's contents. WTI
initially planned to discharge all "B" water after treatment.
However, it now plans to use and evaporate some of this water in the
incineration process. "C" water is that rainwater that has fallen
into hazardous waste processing areas and some waste water from
on-site operations. "C" water will not be discharged to the NPDES
outfall but is going to be used and evaporated in the WTI
incinerator.
WTI has applied for two additional water permits in the remediation
of a xylene spill, as discussed earlier, at the WTI site by a
previous tenant. The first is a permit-to-install to allow
installation of the remediation equipment, and the second is an NPDES
permit to discharge treated water into the Ohio River once the
remediation has begun. Ohio EPA is expected to rule on these permits
once the application process is completed.
ACTIVITIES TO ENSURE THAT HUMAN
HEALTH AND THE ENVIRONMENT ARE
PROTECTED FROM WTI'S OPERATIONS
============================================================ Chapter 5
During the past several years, concerns have been raised about the
potential adverse effects that WTI's operations might have on the
residents and the environment of the East Liverpool area. In
addition, some question EPA's ability to require stringent operating
conditions and standards and to enforce compliance with the
requirements of the incinerator's air emissions and water discharge
permits. EPA has required WTI to conduct a trial burn to make sure
that the incinerator meets the required performance standards; has
implemented a monitoring, inspection, and enforcement program to
ensure that the incinerator is operating in compliance with its
permit; and is conducting a risk assessment to determine the
potential health effects of WTI's operations on the community. In
addition, the Ohio Department of Health has initiated a study to
provide baseline information that the department can use to compare
data before and after the full-scale operation of the WTI facility.
If the above activities are properly developed, implemented, and
monitored, they should go a long way to ensure that WTI's operations
will not adversely affect the community's health or environment.
In instances where WTI's trial burn test results did not meet the
required or expected emissions limits, operating conditions were
changed. Also, EPA and Ohio EPA have found compliance violations
during WTI facility inspections that, in most cases, were corrected
by WTI. EPA and Ohio EPA have taken or are considering enforcement
actions against WTI.
TRIAL BURN USED TO EVALUATE
INCINERATOR'S RISKS
---------------------------------------------------------- Chapter 5:1
A trial burn tests the incinerator's ability to meet all applicable
performance standards when burning a waste under specific operating
conditions. The operating conditions include such things as the rate
and composition of the waste feed, the temperature that must be
maintained in various areas of the incinerator, and the gas flow
rate. To obtain a final operating permit, the trial burn results
must demonstrate that the incinerator can meet the performance
standards contained in its permit. The trial burn results are also
used to establish the final operating conditions that will be
included as part of the facility's permit.
The WTI trial burn was conducted in March 1993. During WTI's trial
burn, a total of nine runs were conducted--three sampling runs under
three operating conditions. The results of the trial burn showed
that the incinerator failed to meet the required performance standard
for one of the four hazardous constituents--carbon
tetrachloride--being tested during two runs of one condition. In
addition, the results showed that the incinerator did not achieve the
expected efficiency in removing mercury during another condition and
exceeded the expected levels for emissions of dioxins.\1 In each
case, EPA responded to the trial burn results by changing the
operating conditions under which the incinerator could continue to
operate in order for emissions to stay within the levels allowed by
its permit.
--------------------
\1 For the purpose of this report, the general term "dioxin" is used
to denote polychlorinated dibenzodioxins and dibenzofurans.
EPA'S APPROACH TO ENSURING
THE SAFETY OF INCINERATOR'S
OPERATIONS
-------------------------------------------------------- Chapter 5:1.1
All incinerators emit gases through a stack as the final step in the
incineration process. These gases are composed primarily of two
harmless constituents, carbon dioxide and water vapor, but they
generally also contain small quantities of pollutants, some of which
are harmful. Among the pollutants that may be released from the
stack are trace quantities of the organic wastes being burned; carbon
monoxide; nitrogen oxides; acid gases such as hydrogen chloride;
products of incomplete combustion such as dioxins; and metals such as
mercury, lead, and chromium that either adhere to or combine with
small particles of ash called particulate matter. In order to obtain
a permit, an incinerator must be able to burn wastes and cleanse
combustion gases so that only small quantities of pollutants are
emitted from its stack.
According to EPA, its performance standards for hazardous waste
incinerators were designed to make sure that incineration is carried
out in a safe manner and poses no unacceptable threat to either the
surrounding environment or the health of people living or working
nearby. These standards were set on the basis of analyses of
potential risks to health or the environment and the levels of
performance that have been measured for properly operated,
well-designed incinerators. EPA's principal measure of incinerator
performance is destruction and removal efficiency. Destruction
refers to the combustion of the waste, while removal refers to the
cleansing of pollutants from the combustion gases before they are
released from the stack.
EPA has stated that because it is not technically feasible to monitor
the destruction and removal efficiency for all organic compounds that
may be contained in the waste feed, a facility must demonstrate that
it can achieve the performance standards for selected hazardous
compounds, called principal organic hazardous constituents, which the
permitting agency designates in the permit. These principal organic
hazardous constituents are generally selected from among the wastes
the applicant is seeking approval to burn on the basis of their high
concentration in the waste feed and their difficulty to burn in
comparison with other organic compounds in the waste feed. According
to the theory of incineration followed by EPA, if the incinerator
achieves the required destruction and removal efficiencies for the
principal organic hazardous constituents, then the incinerator should
achieve the same or better destruction and removal efficiencies for
organic compounds that are easier to incinerate.
The performance standards in the RCRA regulations include emissions
of the designated organic compounds, hydrogen chloride, and
particulate matter. Specifically, those performance standards
require (1) a minimum destruction and removal efficiency of 99.99
percent for organic compounds designated in the permit as principal
organic hazardous constituents; (2) removal of 99 percent of hydrogen
chloride gas from the incinerator's emissions unless the quantity
emitted is less than 4 pounds per hour; and (3) a limit of 180
milligrams of particulate matter per dry standard cubic meter of gas
emitted through the stack. EPA also has discretion to set operating
conditions for any parameter it considers necessary to ensure that
the incinerator meets the performance standards.
Through the trial burn, the incinerator must demonstrate that it can
meet the performance standards under at least one set of the
operating conditions tested before EPA will issue a final operating
permit. If the trial burn results indicate compliance with the
performance standards under some, but not all, tested operating
conditions, the existing permit is modified to include only the
conditions demonstrated as meeting the performance standards during
the trial burn.
In addition, the trial burn results are used to establish the final
operating conditions that will be included as part of a permit.
Because the trial burn involves the measurement of the incinerator's
performance under different sets of operating conditions, the trial
burn results verify the incinerator's ability to meet the performance
standards under one or more of these conditions and thus can be used
to determine what is an acceptable range of operating conditions for
the final permit. The final operating permit specifies only those
operating conditions that have been proven to result in the
incinerator's meeting the performance standards. These operating
conditions are important because it is not technically feasible to
directly and continuously measure certain aspects of performance,
such as destruction and removal efficiency, and certain emissions.
On the basis of the results of the trial burn, the permit may specify
different operating conditions for different types of waste feeds or
specify ranges or minimum or maximum levels for different parameters,
such as temperature. Under the RCRA regulatory approach, as long as
the incinerator operates within these ranges, it is assumed to be
operating under the same conditions as during the successful trial
burn and thus to be in compliance with the environmental performance
standards.
To make sure that trial burns will be properly planned and executed,
the RCRA regulations require that the owner and/or operator of a new
incinerator develop a detailed trial burn plan. This trial burn plan
is prepared as a component of the permit application. The plan
proposes operating conditions for the trial burn, provides a
description of all emissions control equipment to be used, and
explains the procedures for stopping the waste feed, shutting down
the incinerator, and controlling emissions in the event of any
problems. EPA does not approve a trial burn plan unless it has
judged that the incinerator is likely to meet all performance
standards throughout the trial burn and that any departure from this
expected level of performance will not pose an imminent hazard to
health and the environment. When an incinerator does fail to meet
the performance standards, EPA considers the potential risks to human
health and the environment to be minimal because of the short
duration of these tests.
WTI'S TRIAL BURN PLAN
EXCEEDED REGULATORY
REQUIREMENTS
-------------------------------------------------------- Chapter 5:1.2
WTI's trial burn plan contained several provisions that were not
required by the RCRA regulations but were included on the basis of
the Regional Administrator's discretionary authority to test other
parameters during the trial burn. Among those things that were not
normally required but were tested during the WTI trial burn were
obtaining destruction and removal efficiency data for additional
principal organic hazardous constituents and testing for specific
metals and products of incomplete combustion.
The RCRA regulations do not specify the exact number of principal
organic hazardous constituents that will be tested during the trial
burn. An EPA Region V official said that although many facilities
test two principal organic hazardous constituents during the trial
burn, four principal organic hazardous constituents were selected for
the WTI trial burn. According to this official, primarily because
there is not agreement about whether an index of heat of combustion
or an index of thermal stability at low oxygen concentration is the
most appropriate to use in selecting the principal organic hazardous
constituents, the region decided to select two hazardous constituents
from each of the two indices. Carbon tetrachloride and
trichloroethylene were selected using the heat-of-combustion index,
and monochlorobenzene and 1,2,4-trichlorobenzene were selected using
the thermal-stability-at-low-oxygen-concentrations index.
EPA also required WTI to test for certain metals and products of
incomplete combustion during the trial burn. Because of the lack of
technology, neither emissions of metals nor products of incomplete
combustion can be directly and continuously monitored during normal
incinerator operations, and until recently these emissions generally
were not considered or measured during the trial burn. Although
testing for products of incomplete combustion during a trial burn is
not required under RCRA and Clean Air Act regulations, WTI's trial
burn included testing for certain products of incomplete combustion,
including dioxins, during all three trial burn conditions. EPA
included testing of these emissions during the trial burn because of
the expressed public interest in them and the need for information on
these emissions for the second phase of the risk assessment being
done at WTI. (Phase II risk assessment is discussed later in this
chapter.)
The requirement that WTI test for certain metal emissions during the
trial burn was based on national guidance and requirements contained
in EPA's 1991 boiler and industrial furnace rules and added to WTI's
permit in 1992 when it was amended to add the spray dryer. EPA's
February 1991 rules for boilers and industrial furnaces, among other
things, established limits that were intended to control the
emissions of 10 toxic metals, 4 of which are carcinogenic.
Specifically, the rules established limits on the emissions of those
metals and required permittees who wanted to burn more than the
allowed emissions limit for any of those metals to test the system's
ability to remove those metals during the trial burn. WTI's trial
burn plan included emissions testing for 7 of those 10 metals; the
remaining 3 metals were not tested because WTI would not burn more
than the allowed emissions limits.
Finally, the approved trial burn plan required WTI to cease feeding
hazardous waste after the trial burn was completed until WTI could
certify compliance with limits on the emissions of stack gas
particulate and carbon monoxide. Normally, a facility would be
allowed to move directly into limited post-trial burn operations
after completing the trial burn testing.
After much negotiation, on January 8, 1993, EPA approved WTI's trial
burn plan.
WTI DID NOT ACHIEVE ALL
PERFORMANCE STANDARDS OR
EXPECTED EMISSIONS LEVELS
DURING THE ORIGINAL TRIAL
BURN
-------------------------------------------------------- Chapter 5:1.3
WTI conducted its initial trial burn, following its approved trial
burn plan, from March 10 to March 18 and on March 30, 1993. The
trial burn was designed to demonstrate compliance with all relevant
RCRA, EPA, and Ohio EPA performance standards and permit limitations.
To demonstrate compliance with the performance standards, it was
conducted under three operating conditions. Three sampling runs were
done for each one of the three test conditions.
The WTI facility's overall trial burn was designed to demonstrate the
following performance-related parameters:
Destruction and removal efficiency for four principal organic
hazardous constituents (carbon tetrachloride, monochlorobenzene,
trichloroethylene, and 1,2,4-trichlorobenzene).
Particulate matter emissions rate.
Emissions levels and system removal efficiencies for seven metals
(antimony, arsenic, beryllium, cadmium, total chromium,
hexavalent chromium, lead, and mercury).
Emissions levels for hydrogen chloride, chlorine, and system
removal efficiency for hydrogen chloride.
Emissions levels for carbon monoxide, sulfur dioxide, oxides of
nitrogen, and total hydrocarbons.
EPA's analysis of WTI's trial burn results showed that the
incinerator met all other conditions, including the stack gas
particulate and carbon monoxide emissions limits but (1) failed to
achieve the 99.99 percent destruction and removal efficiency for one
of the conditions of the trial burn for carbon tetrachloride, as
required under RCRA; (2) emitted approximately 4.5 times more mercury
than permitted; and (3) emitted dioxin, on average, at levels 2.8
times higher than the levels expected and included in the Phase I
risk assessment (discussed later in the chapter).
CARBON TETRACHLORIDE DID
NOT MEET PERFORMANCE
STANDARDS
------------------------------------------------------ Chapter 5:1.3.1
On April 2, 1993, WTI notified EPA that the incinerator failed to
achieve the required destruction removal efficiency for carbon
tetrachloride during two of the three runs of one condition. On
April 12, 1993, EPA imposed restrictions on WTI, precluding it from
operating under the conditions maintained during the two failed test
burn runs.
Through analysis of the trial burn results, EPA determined that the
WTI incinerator failed to demonstrate adequate destruction and
removal efficiency for carbon tetrachloride during one condition of
the March 1993 trial burn because the incinerator was unable to
adequately destroy the watery wastes that were fed into the secondary
combustion chamber. It also stated that the lower temperatures in
the secondary combustion chamber and the greater difficulty in
destroying watery wastes contributed to this failure.
In order to repeat its failed trial burn, on July 1, 1993, WTI
requested a Class 2 permit modification for, among other things, a
modified trial burn plan to carry out a new test similar to the
condition of the original trial burn and held a public meeting on
this request on July 27, 1993. According to EPA, the only proposed
change to the test protocol, which EPA had previously approved, was
the elimination of aqueous (watery) waste feed to the secondary
combustion chamber.
Because WTI's proposed permit modification eliminated aqueous feed to
the secondary combustion chamber, EPA determined that the modified
test should meet the destruction removal efficiency performance
requirement and that stack emissions should be slightly less than
those observed during the March 1993 trial burn test. After
receiving no public comments on the modified trial burn plan, EPA
approved WTI's request for a modified trial burn test for one
condition in October 1993. WTI conducted this test in February 1994
and submitted its report of the results to EPA in April 1994.
According to EPA, the results showed that the facility met the
performance standards.
MERCURY EMISSIONS
EXCEEDED PERMIT LIMITS
------------------------------------------------------ Chapter 5:1.3.2
On April 26, 1993, WTI notified both EPA and Ohio EPA that
preliminary data from the trial burn indicated that the metal
emissions rates for mercury exceeded the permitted limits. It
reported average metal system removal efficiency for mercury during
all three runs of one condition at 6.69 percent and thus estimated
mercury emissions of 9.2 pounds on March 10 and 19.4 pounds on March
11. It further stated that the mercury emissions were higher than
expected because the mercury that was added to the neutralization
system before and during condition-one runs, as imposed by EPA in its
January 1993 letter approving the trial burn plan. As a result, WTI
reported that it ceased feeding hazardous waste and requested that a
1,600-gram-per-day feed limit, which was equal to its emissions limit
for mercury, be imposed immediately so that it could resume
operations. Subsequently, on May 4, 1993, WTI requested that EPA
change the maximum feed rates for the other nine regulated metals on
the basis of the results of the trial burn.
In response to this request, on May 7, 1993, EPA issued revised
interim stack emissions limits and waste feed rates for all 10
regulated metals. The only change reflected in these revised limits,
however, was a reduction in the interim maximum feed rate for
mercury, which, as requested by WTI, was reduced from 2.1 pounds per
hour to .42 pounds per hour. The .42 pounds per hour is equal to the
interim maximum stack emissions level for mercury. Thus, the new
feed rate assumed that no mercury would be removed from the waste
during incineration. Subsequently, in October 1993 EPA issued
revised interim metals feed rates based on actual emissions
demonstrated during WTI's trial burn. As part of that action, EPA
revised the mercury feed rate from .42 pounds per hour to .146 pounds
per hour. WTI had requested this change to be consistent with the
mercury emissions limits contained in its air permit.
DIOXIN EXCEEDED EXPECTED
LEVELS
------------------------------------------------------ Chapter 5:1.3.3
Finally, during EPA's review of WTI's trial burn results--submitted
to EPA on May 8, 1993--the agency found that dioxin levels were
higher than had been expected. On June 16, 1993, EPA sent a letter
to WTI expressing concern about dioxin levels in the trial burn
report and requesting details of how WTI would lower dioxin
emissions, a by-product of the combustion process often associated
with the burning of chlorine waste. In this letter, EPA requested
WTI to burn only low chlorine wastes until the matter was resolved.
After failing to reach agreement with WTI on a plan for reducing
chlorine, EPA requested that WTI not go back into operation until it
was able to discuss the changes at a meeting between EPA and WTI on
June 24, 1993. On June 25, 1993, WTI submitted a Class 2
modification to allow installation, testing, and operation of an
enhanced carbon injection system to reduce the dioxin emissions.
On June 28, 1993, WTI followed up with a request for a temporary
authorization to install, test, and operate the enhanced carbon
injection system. EPA approved the request on July 8, 1993,
primarily because it anticipated the system would reduce dioxin
emissions. In addition, EPA indicated that it would be able to make
a more informed final decision on the system if it were tested in
advance. Thus, according to EPA, had the system not demonstrated
adequate control of dioxins, the proposed modification could have
been denied.
The temporary authorization allowed WTI to install, perform shakedown
operations, carry out performance testing, and, based on testing
results, operate the enhanced carbon injection system. The enhanced
carbon injection system performance test comprised a series of stack
emissions test runs to demonstrate that the incineration system, with
the enhanced system operating, achieved the designated emissions
limits for dioxins and for particulate matter. The designated
emissions limit was a stack emissions rate not to exceed 30 nanograms
per dry standard cubic meter total dioxins, averaged over all runs of
the test.\2
WTI carried out performance testing of the enhanced carbon injection
system in August 1993. EPA's analysis of those results showed that
stack emissions improved considerably, averaging 13 nanograms per dry
standard cubic meter during the performance test compared to an
average of 130 nanograms per dry standard cubic meter during the
March 1993 trial burn. In addition, particulate testing conducted
during the performance test showed no reduction in the incinerator's
particulate collection efficiency.
EPA approved the addition of the enhanced carbon injection system to
the permit on October 28, 1993. In response to citizens' expressed
concerns about the deleterious health effects of public exposure to
continuous small amounts of dioxins and heavy metals, EPA stated in
its Response to Comments accompanying its approval of the enhanced
carbon injection system that the potential effects from such
emissions are an important concern and that EPA's Phase II risk
assessment is being done to better evaluate the potentially negative
effects of such emissions and to determine whether additional
restrictions are needed. The response stated further that after the
results of this assessment had been prepared and peer-reviewed, WTI's
permit for operating conditions would be adjusted to make sure that
emissions of persistent and bioaccumulative contaminants, such as
dioxins and heavy metals, fell below health-based risk levels.
Along with the approval, it also included an additional attachment to
the permit that specified operational limitations and test
requirements for the system. Among the permit conditions contained
in that attachment are requirements that (1) the incineration system
be tested quarterly following the approved performance test plan for
the first year after the permit modification becomes effective and
then annually; (2) the enhanced carbon injection system be operated
at all times whenever hazardous wastes are being burned; and (3) if
new information becomes available which indicates that operation of
the enhanced carbon injection system may interfere with the
incineration system's ability to comply with any EPA or Ohio EPA
standards or that emissions are increasing as a function of time,
then the Regional Administrator can require WTI to perform additional
testing or take additional measures necessary to make sure that all
standards are met and human health and the environment are
protected.\3
--------------------
\2 This is a technology-based standard that was proposed in EPA's
1993 Draft Hazardous Waste Minimization and Combustion Strategy.
Later guidance provided by EPA headquarters suggested that this
standard was only a goal and that specific limits contained in a
facility's permit should be based on a site-specific risk assessment.
\3 See appendix VII for additional information provided by WTI on its
dioxin emissions.
MONITORING, INSPECTION, AND
ENFORCEMENT AT THE WTI FACILITY
---------------------------------------------------------- Chapter 5:2
The RCRA permit specifies conditions for operations that help to make
sure that the incinerator will meet all applicable RCRA standards.
Once the permit is issued, the permittee is legally bound to operate
according to the conditions specified in its permit. To make sure
that the permittee operates the facility as specified in the permit,
EPA requires permittees to record operating information, conduct
inspections, and provide periodic reports to the agency. EPA also,
along with the state, conducts both announced and unannounced
periodic inspections.
Similarly, ensuring that the emissions from incinerators do not
exceed the permitted limits and that the air and water qualities stay
within prescribed health and safety standards are the
responsibilities of the emitters and of the federal and state EPAs.
WTI has the principal responsibility for controlling its operations
to ensure that it does not exceed the permitted limits. The Ohio EPA
also has prime responsibility for inspecting, monitoring, and
enforcing state regulations established under the Clean Air Act and
the Clean Water Act.
RCRA REQUIREMENT FOR
MONITORING, INSPECTION, AND
ENFORCEMENT
-------------------------------------------------------- Chapter 5:2.1
The RCRA regulations and the facility permit require that the
permittee (1) maintain records of all critical aspects of the
operation; (2) make periodic reports to the permitting agency; and
(3) inspect monitoring equipment, safety and emergency equipment, and
operating and structural equipment which prevents, detects, or
responds to spills or releases, according to a written schedule that
is submitted with the permit application and is incorporated by
reference into the permit.
RCRA regulations require the permittee to keep a written operating
record at the facility. This information must be recorded as it
becomes available and maintained at the facility until closure. This
operating record must include items such as (1) a description and the
quantity of each hazardous waste received and the methods and dates
of its storage, treatment, and disposal; (2) the location of each
hazardous waste within the facility and the quantity at each
location; (3) the records and results of any waste analyses done at
the facility; (4) summary reports and details of all incidents that
require implementation of the contingency plan; (5) records and
results of all required inspections; and (6) monitoring, testing, or
analytical data required and associated with tanks, containment and
detection systems, the incinerator system, and associated equipment.
All records, including plans, must be made available for any
inspections by EPA or its representatives.
In addition, the permittee must prepare and submit a biennial report
to the EPA regional administrator by March 1 of each even-numbered
year showing the facility's activities during the previous calendar
year. At the time of our review, WTI had not submitted a biennial
report since it was not in operation at the time the last report was
required. As required by RCRA regulations, WTI's permit also
requires it to report any noncompliance with permit conditions that
could endanger health or the environment within 24 hours from the
time the permittee becomes aware of the circumstances.
Generally, loading and unloading areas, tank systems, and other areas
where spills may occur must be inspected daily by the permittee.
Container storage areas must be inspected at least weekly for leaking
and deteriorating containers. The data from monitoring and leak
detection equipment must be reviewed daily. Deterioration or
malfunctions must be remedied immediately if a hazard is imminent or
already exists. If an existing hazard is not imminent, the situation
must be remedied on a schedule that ensures that no harm is done to
nearby residents or to the environment.
During operations, the permit also requires continuous monitoring of
certain parameters, such as combustion temperature, to make sure that
they are within the ranges specified by the permit. If parameters
deviate from these ranges, a sensor triggers an automatic waste feed
shut-off system, which is required in all permitted incinerators.
This system promptly cuts off the feeding of wastes into the
incinerator and will not resume until the required operating
conditions have been restored. The system must be tested
periodically to ensure that it is operating properly. All monitoring
and inspections done by the permittee must be recorded, and the
records must be placed in the facility's operating log for EPA's
inspection.
RCRA INSPECTIONS AND
ENFORCEMENT ACTIONS BY
FEDERAL AND STATE EPAS
-------------------------------------------------------- Chapter 5:2.2
RCRA requires that all hazardous waste management facilities be
inspected at least once every 2 years. The permitting agency--in
this case both the federal and Ohio EPAs--must make sure that the
facility complies with all permit conditions. Facility inspections
are the main tool by which these agencies monitor for compliance. An
inspector reviews records, takes samples, and observes facility
operations. If the permittee is found during the inspection to have
failed to meet any of the requirements of its permit, the permittee
is subject to a broad range of civil or criminal enforcement actions,
including penalties or suspension or revocation of the permit.
Historically, EPA generally has not suspended or revoked RCRA
permits; rather, it has taken the approach of trying to get the
permittee back into compliance by using other enforcement actions.
As we have previously reported\4 and EPA recognized in a 1990 study,
penalties imposed as a result of enforcement actions are an important
deterrent to future violations. Generally, the type of enforcement
action taken depends on the severity of the violation. The degree of
severity is determined by the likelihood that the violation will pose
a threat to human health or the environment. For example, some
recordkeeping violations would be judged less severe than operating
violations that affect an incinerator's performance. EPA regional
offices generally have broad discretion in these matters.
Although RCRA requires an inspection at least once every 2 years,
during 1993 Ohio EPA maintained a full-time inspector at the WTI site
to make sure that only wastes approved under WTI's hazardous waste
facility permit were accepted and to carry out random inspections of
other WTI operations. In addition to the full-time inspector
generally inspecting the facility several times a week, Ohio EPA
inspectors have conducted two comprehensive compliance evaluation
inspections and three reviews of WTI's financial records. On the
basis of its inspections, as of November 1993 the Ohio EPA had found
18 violations, 15 of which the state believes WTI has adequately
responded to and thereby returned to compliance with the hazardous
waste rules. The remaining three violations are outstanding and have
been included in an administrative consent order sent to WTI.\5 The
18 violations included failure to (1) keep hazardous waste containers
closed when not being used, (2) take precautions to prevent
accidental ignition of an ignitable waste, (3) properly label and
date hazardous waste containers, and (4) properly maintain a written
operating record.
In letters dated September 30, 1993, to four commercial hazardous
waste facilities in Ohio, including WTI, the Ohio EPA invited
managers at each facility to enter into an agreement with the Ohio
EPA to provide funding to implement a compliance monitoring program.
According to Ohio EPA, as of June 1994 an agreement in principle had
been reached between the Ohio EPA and WTI to fund three full-time,
dedicated Ohio EPA inspectors at the WTI facility.
As of September 1993, EPA inspected the WTI facility five times
during April, May, and June 1993. Ohio EPA inspectors participated
in two of the five inspections but were invited to accompany the
federal EPA inspectors on all inspections. The facility was burning
hazardous wastes during one of the five inspections. On three
occasions, the incinerator was burning natural gas or natural gas and
coal spray. On the final occasion, the incinerator was not in
operation.
Each inspection included both a walk-through inspection of specific
areas of the facility and a review of specific operating data. Each
inspection also included a review of the operating data for the
automatic waste feed cut-off system for the period between each
inspection. Over the 7-week period covered by the inspections, WTI's
records indicated that its automatic waste feed cut-off system, which
is activated when temperature, pressure, carbon monoxide, and oxygen
levels are outside of specified parameters, shut off the waste feed a
total of 69 times. A check of kiln temperature operating records
during one of the above inspections showed that the automatic waste
feed cut-off system had functioned when the temperatures were outside
the ranges specified in the permit. According to an EPA regional
official, although there are no standards for a reasonable number of
times that the automatic waste feed shut-off system should be
activated, frequent activation of the system should be evaluated.
According to another EPA official, frequent activation of automatic
waste feed cut-off systems could be indicative of other problems,
such as not conducting proper waste analyses. Nationally, EPA's
Office of Research and Development has done some research on the
impact of automatic waste feed cut-off systems, but according to EPA
officials, the research is not conclusive.
The April inspection also found hazardous waste storage violations.
These storage violations involved improper labeling and marking of
accumulation dates as well as uncovered containers of hazardous waste
in the bulk unloading area. WTI corrected these violations
immediately after EPA inspectors brought them to WTI officials'
attention. In August 1993, EPA announced that it was seeking
penalties of $14,950 for these violations. EPA has not yet taken any
other enforcement actions on the basis of the other inspections.
--------------------
\4 Hazardous Waste: A North Carolina Incinerator's Noncompliance
With EPA and OSHA Requirements (GAO/RCED-92-78, June 30, 1992).
\5 In commenting on a draft of this report in June 1994, Ohio EPA
stated that it found additional violations at the WTI facility during
inspections in November and December 1993 and March 1994. Ohio EPA
also stated that it sent WTI a proposed administrative consent order
in June 1994 that addresses violations of air and hazardous waste
regulatory requirements and includes a $182,200 civil penalty
settlement payment ($73,200 for hazardous waste violations and
$109,000 for air violations).
OTHER ENFORCEMENT ACTIONS
-------------------------------------------------------- Chapter 5:2.3
In addition to those actions related to WTI's permit conditions, EPA
issued notices and has taken enforcement actions against WTI for
other types of violations. In September 1988, EPA requested that WTI
fill out and return a National Survey of Hazardous Waste Treatment,
Storage, Disposal and Recycling Facilities within 15 days. WTI did
not respond to the requested information because it was not yet
operating and thus did not believe the survey applied to it. As a
result, EPA issued a Complaint and Compliance Order against WTI in
August 1989. After negotiations between EPA and WTI, WTI submitted
the survey and agreed in April 1990 to pay a fine of $9,500.
On December 20, 1991, EPA notified WTI that RCRA does not allow for
construction of a unit--in this case the spray dryer--until the
permit modification is approved. On December 23, 1991, WTI
responded, stating that the company believed construction could begin
before EPA's final decision on its permit modification request and
indicated that, in fact, construction activities had begun.
Subsequently, on January 2, 1992, EPA conducted an inspection at the
WTI facility and observed that construction and installation of the
spray dryer was under way. In subsequent discussions between WTI and
EPA officials, the WTI official indicated that construction and
installation of the spray dryer had begun on December 18, 1991. On
January 9, 1992, EPA ordered WTI to cease all construction and
installation activities associated with the spray dryer until EPA had
made a final decision on the permit modification. It also proposed a
$156,250 civil penalty against WTI. As agreed with EPA, on February
24, 1992, WTI paid a $129,000 civil penalty for the above violation.
On August 24, 1993, EPA issued a civil administrative complaint
against WTI seeking penalties of $64,950 for WTI's failure to notify
EPA and to obtain a permit modification to name Von Roll (Ohio),
Inc., as an additional operator of the WTI facility.
Finally, EPA Region V notified WTI on January 3, 1994, that EPA had
determined that WTI had violated two conditions of its permit when an
incident involving a fugitive emission of fine particulate ash was
released at the WTI facility on December 10, 1993. The permit
conditions violated were that (1) WTI failed to maintain
below-atmospheric pressure in the secondary combustion chamber and
(2) WTI failed to provide an oral report of the incident to EPA
within 24 hours of the incident. No penalties were assessed against
WTI for these violations, but EPA did require WTI to provide EPA
with, among other things, a plan to change the computer logic of the
incinerator control system to ensure that similar incidents did not
occur in the future. As of July 1994, EPA was waiting for
information to demonstrate that the changes to the computer logic
will ensure future compliance with the applicable permit conditions.
WTI'S MONITORING AND
INSPECTION UNDER THE CLEAN
AIR PERMIT
-------------------------------------------------------- Chapter 5:2.4
The air permit issued to WTI required it to install and maintain
continuous emissions monitoring equipment in the stack and ducts to
monitor particulate matter (opacity), sulfur dioxide, nitrogen oxide,
hydrogen chloride, and carbon monoxide. WTI also is required to
install a continuous pH measurement on the scrubber in order to
determine its effectiveness in controlling sulfur dioxide emissions.
In addition to the requirements under the air permit, WTI is also
doing continuous emissions monitoring of oxygen in the stack gas and
monitoring for operating conditions, such as temperature and air flow
rate.
These emissions monitors are connected to WTI's computer system that
records the results and allows "real-time" on-screen visibility in
WTI's control room of how the plant is operating. The control room
is manned 24 hour a day while the system is operating. Additionally,
WTI's system is set up to automatically stop the waste fed into the
kiln, where burning takes place, if any of the emissions levels\6
measured by the monitoring equipment in the stack reach a "trip
point." The trip points, levels set below the permitted emissions
limits, will allow WTI to stop and correct the system before
exceeding the emissions limits. However, a WTI official explained
that even though the waste feed is stopped and WTI begins a
controlled shutdown, the facility may exceed the emissions limits for
a short period of time. This may happen because the remaining waste
that has triggered the problem is still burning in the kiln and the
system does not immediately stop stack emissions. Once the system
begins a controlled shutdown, WTI will attempt to identify and
correct the problems. For example, if sulfur dioxide emissions get
too close to the 11.3 pounds per hour allowed in the air
permit-to-operate, the system will shut down the waste feed
automatically. The system operator and/or plant manager will try to
identify and correct the problems causing the sulfur emissions. Some
of the options available include adjusting the operating temperature
or burner efficiency, reducing the waste feed rate, or reducing the
amount of the waste feed containing sulfur.
The computer system will automatically record the exceedances, which
are included in a quarterly report to the Ohio EPA, as required by
the air permit. For example, for sulfur dioxide and nitrogen oxide
the report would include all hourly readings above the applicable
emissions limitations. The report must include the date, magnitude
(lb./hr.), reason (if known), and corrective action taken (if any)
for each exceedance. Any monitoring equipment downtime while WTI is
on-line must be documented and included in the report along with any
corrective action(s) taken. WTI is also supposed to include in the
quarterly report the sum total of sulfur dioxide emissions in tons.
As of December 1993, WTI had submitted two quarterly reports of
excess emissions covering the period since WTI began limited burning
in April 1993. These reports cover the period from April through
September 1993. WTI reported for the quarter ending June 1993 that
it had exceeded emissions limits in several cases, including total
hydrocarbons and carbon monoxide. WTI reported for the quarter
ending September 1993 that it had exceeded emissions limits for
carbon monoxide. The reports indicate that some of the carbon
monoxide exceedances were associated with startup and/or the firing
of natural gas into a cold combustor. Corrective actions taken
included replacing the burners, adjusting the burner temperatures,
and adding more outside air to the kiln to increase the oxygen and
thus improve the efficiency of the burn. The exceedances of total
hydrocarbons were associated with startup and the use of recycled
water, which contained a high level of organics in the scrubber. WTI
corrected the problem by switching to city water for use in the
scrubber.
The quarterly reports also give the results of the quarterly testing
of the continuous monitoring equipment using known test gases and
indicate instances of monitor downtime when continuous monitoring
equipment is not working during normal operations. The required
quarterly testing is to ensure the accuracy and dependability of the
monitoring equipment. Both reports indicated that the equipment was
operating accurately during the tests. The reports indicated some
monitor downtime for total hydrocarbons, hydrogen chloride, nitrous
oxides, sulfur dioxide, carbon monoxide, and opacity. The downtimes
ranged from 1 minute to 4 days. A WTI official explained that, for
example, if the carbon monoxide or oxygen monitoring equipment was
not working, the incineration system would automatically shut down.
--------------------
\6 The emissions monitored by the stack monitoring equipment include
carbon monoxide, hydrocarbons, hydrogen chloride, sulfur dioxide,
nitrogen oxides, oxygen, and carbon dioxide.
EPA'S OVERSIGHT AND OHIO
EPA'S MONITORING,
INSPECTION, AND ENFORCEMENT
UNDER THE AIR PERMIT
-------------------------------------------------------- Chapter 5:2.5
EPA delegated its primary monitoring, inspection, and enforcement
responsibility for the Clean Air Act to Ohio EPA in 1980 when it
approved Ohio's State Implementation Plan. EPA normally relies on
the states that have approved plans to perform their own monitoring,
inspection, and enforcement, especially in the case of minor emitters
such as WTI. EPA performs these actions only when problems are
detected, when problems are reported by the state EPA offices, or
when it receives a special congressional request. As of December
1993, EPA had not conducted air monitoring and air inspection
activities at WTI except for taking part in the trial burn. The Ohio
EPA manages the air program according to the conditions established
in its annual agreement with EPA, from which it also receives annual
grant funds.
The Ohio EPA and its agent, the North Ohio Valley Air Authority
(NOVAA), monitor and inspect WTI's operations routinely to ensure
that the plant is operating properly and is within air permit limits.
Generally, monitoring is done through the use of continuous emissions
monitoring equipment. Monitoring can be done remotely by the Ohio
EPA and NOVAA or directly during site visits at the plant. NOVAA is
required, through its grant with the Ohio EPA, to perform one annual
physical inspection of the plant.
Ohio EPA and NOVAA have access to WTI's continuous monitoring system
by modem 24 hours a day to address Ohio's air permit requirements.
EPA Region V has requested remote access to WTI's continuous
monitoring system, but as of June 1994, WTI indicated that it is not
physically able to provide additional remote access.
NOVAA's responsibilities include reviewing emissions monitoring data,
making physical inspections, and verifying WTI's tests of the
system's equipment and emissions. NOVAA monitors WTI's monitoring
data via the modem at least three times a week. A NOVAA official
stated that NOVAA personnel visit WTI at least twice a month to
perform a variety of inspections, including visual inspections of the
continuous emissions monitoring equipment, and to investigate
citizens' complaints. NOVAA also observes and verifies (1) the
accuracy of quarterly stack tests, required in the air permit, of
lead and particulate emissions and (2) the quarterly testing of the
monitoring equipment to insure its accuracy. To help perform these
inspections, NOVAA has received additional funding from the state and
has hired another engineer who spends approximately 50 percent of his
time monitoring and inspecting WTI. In addition to monitoring and
inspection, Ohio EPA relies on NOVAA to take minor enforcement
actions against WTI. For example, when NOVAA becomes aware of a
violation, it will send a warning letter to the violator. However,
if the violation is chronic, poses a health threat, or is not
corrected within 30 days, Ohio EPA is responsible for pursuing
enforcement actions, including claims for civil penalties. Ohio EPA
also accesses WTI's monitoring data via the modem on a random basis
to check on WTI's operations.
NOVAA has accessed WTI's system many times and has found no
exceedances other than those indicated in WTI's quarterly reports on
excess emissions. NOVAA and Ohio EPA officials are concerned,
however, with WTI's two quarterly reports on excess emissions,
because WTI did not completely describe the causes of the excess
emissions, the remedial actions taken, and the number of excess
emissions occurring during startup of the kiln. The officials have
asked WTI to improve future reports and give more information about
the excess emissions.
Ohio's laws and regulations authorize various enforcement actions,
including revocation of the violator's permit and the assessment of
civil and criminal penalties. The maximum civil penalty for an air
violation is $25,000 per day. The maximum criminal penalty is
$25,000 per day, or 1 year in prison, or both. However, Ohio EPA's
first priority is to resolve identified problems, working
cooperatively with a violator. Ohio EPA's general policy is to
pursue enforcement action to seek civil penalties if the violation is
not corrected within 30 days after a notice of violation is issued or
if the violations are chronic or pose a health threat.
As of June 1994, Ohio EPA was in the process of taking an enforcement
action against WTI (see footnote 4 in this chapter). Some of the
issues that Ohio EPA is addressing include the excess mercury
emissions that were released during the trial burn, failure to report
within the required period a lime spill caused by an incorrectly
positioned valve, and failure to submit the excess emissions report
from the monitoring system within the required period.\7
--------------------
\7 WTI failed to submit to Ohio EPA the fourth quarter 1992 report
within 30 days following the end of the calendar quarter, as
required.
WTI'S MONITORING
REQUIREMENTS AND ACTIONS
UNDER THE CLEAN WATER PERMIT
-------------------------------------------------------- Chapter 5:2.6
WTI also is responsible for ensuring that it is complying with the
Clean Water Act and meeting the conditions established in its water
discharge permit. The permit specifies the following monitoring
requirements: (1) daily observation of color, odor, and turbidity;
(2) daily estimate of discharge flow rate; (3) daily measurement of
the maximum value of water temperature; and (4) daily sample of total
organic carbon. This information is to be obtained from three
required on-site sampling stations. The data gathered by WTI from
these sites are submitted to Ohio EPA in monthly operating reports.
EPA'S OVERSIGHT AND OHIO
EPA'S MONITORING,
INSPECTION, AND ENFORCEMENT
OF THE WATER PERMIT
-------------------------------------------------------- Chapter 5:2.7
Because WTI was going to discharge pollutants into the Ohio River, it
was required to obtain a water discharge permit from Ohio EPA. EPA
has oversight responsibilities for Ohio's program; however, EPA
officials stated that they do not systematically oversee WTI's permit
since the facility is considered a minor discharger.\8 EPA Region V
concentrates on major dischargers because of the large volume of
water discharge permits it receives. Unless Region V is notified of
unusual circumstances or specific congressional requests come
forward, Region V plans only to review Ohio EPA's paperwork on minor
dischargers periodically and, in a rare instance, may visit a minor
discharge facility.
Ohio EPA has full responsibility for all monitoring, inspection, and
enforcement of WTI's water discharge permit. Ohio EPA is funded in
part for the entire water program by an EPA grant to the state. Ohio
EPA has no written guidelines on when to inspect minor water
discharge facilities, such as WTI. However, Ohio EPA can make a
surprise inspection at WTI at any time, should it be necessary. WTI
is considered to be a minor industrial risk because it emits only
noncontact cooling water. As of September 1993, Ohio EPA had not
conducted any water-related inspections.
Ohio EPA monitors WTI's monthly operating reports of water discharges
to identify problems. Once Ohio EPA has analyzed data collected over
the first year of incinerator operation, a revision of the water
permit will be considered to adjust the discharge limits to more
closely conform to WTI's actual water discharges.
Ohio's Revised Code provides a variety of criminal penalties for
water violations. Depending on the type of violation, the maximum
penalty could be either $25,000 per violation or $10,000 per day.
The criminal penalties include either the monetary penalty or
imprisonment up to 1 year, or both. The maximum civil penalty is
$25,000 per day.
As of October 1993, Ohio EPA officials said that WTI has submitted
all the required monthly operating reports for water discharges.
Ohio EPA has been reviewing the reports for compliance with the water
permit and has found only one monthly report that showed an
exceedance. This exceedance was for the pH level of the water.
However, after examination, Ohio EPA found that the exceedance was
the result of high calcium carbonate levels coming off of newly
poured concrete used in the construction of the plant. No action was
deemed necessary, and all samples taken since have been within
permitted limits.
--------------------
\8 EPA's distinction between a major and minor water discharger is a
matter of policy. EPA uses a number of factors, such as toxic
pollutant potential, flow volume, public health impact, and water
quality, to determine whether a water discharger is major or minor.
RISK ASSESSMENTS AT WTI
---------------------------------------------------------- Chapter 5:3
Although RCRA regulations did not require WTI to conduct a risk
assessment during the permitting process, WTI conducted a risk
analysis in 1983 as a routine procedure in the design of an
incinerator. The results indicated that the health risk fell within
EPA's acceptable limits.
In 1991, however, because of concerns raised by Members of Congress
and the general public, EPA Region V initiated a two-phased risk
assessment. The first phase, a screening document based on
conservative assumptions about the risks associated with inhalation
of stack emissions, was completed in July 1992. The results
indicated that the stack emissions from the incinerator should not
present an unreasonable risk to human health. For lead, the exposure
level slightly exceeded the threshold under a worst-case scenario but
was considered safe by EPA. The second phase, considered to be a
more comprehensive assessment of risks to human health posed by
inhalation, skin exposure, soil ingestion, and food chain pathways,
is ongoing with no projected completion date available.
EARLY RISK ANALYSIS DONE BY
WTI
-------------------------------------------------------- Chapter 5:3.1
WTI's risk analysis was conducted in 1983 by a contractor using very
conservative assumptions. According to a Von Roll official, the
results of the analysis showed that the risk related to WTI emissions
fell well within EPA's requirements of between 1 in 1 million and 1
in 10,000. WTI's analysis stated that there were uncertainties in
all of the parameters when calculating the risks. However, according
to Von Roll, in each case the maximum level of the range of
uncertainty had been used in the calculations to provide a
conservative estimate.
EPA'S TWO-PHASE RISK
ASSESSMENT
-------------------------------------------------------- Chapter 5:3.2
In permitting hazardous waste incinerators, RCRA does not require EPA
or an authorized state to perform risk assessments. However, for
those instances in which EPA deems it appropriate to conduct a risk
assessment, the agency developed assessment guidelines in September
1986. The guidelines, which relate to areas such as estimating
exposure and determining carcinogenicity, were developed to promote
high technical quality and agencywide consistency in the risk
assessment process.
EPA decided to conduct a risk assessment of the WTI facility to
determine its potential health effects on the community. In July
1992, EPA Region V completed the first of a two-phased risk
assessment. Phase I of the assessment was a preliminary screening to
determine the risk of exposure from inhalation. It is important to
note that while inhalation is the most direct route of exposure, it
is not the only potential pathway. The first phase considered only
inhalation, but the second, more complete phase will evaluate
indirect pathways as well as inhalation.
PHASE I RISK ASSESSMENT
------------------------------------------------------ Chapter 5:3.2.1
The objective of the Phase I assessment was to determine the extent
and likelihood of harm to public health resulting from smokestack
emissions. Both cancer risk and the potential for noncarcinogenic
effects, such as decreased fetal birth weight or decreased red blood
cell count, were assessed. Average- and worst-case emissions were
used to evaluate the risk to a hypothetical individual who had
received maximum exposure--a person assumed to have spent 70 years at
the point of maximum concentration. It is important to note that
because of this assumption, the average case overestimates inhalation
risk to the population as a whole. The estimates of average
emissions were based on mean values reported at similar facilities.
The estimates of worst-case emissions were based on the limits set by
the Ohio EPA's air permit. The facility is required to keep
emissions at or below these permitted levels.
The Phase I assessment consisted of four steps: (1) the
identification of chemicals of concern potentially released from the
incinerator; (2) a toxicity assessment for the chemicals of concern;
(3) an exposure assessment of the individual with maximum exposure to
incinerator emissions; and (4) a risk characterization, including a
discussion of the uncertainties underlying the quantitative risk
estimates. Conservative approaches were undertaken in the
characterization of chemicals and estimation of emissions rates from
the incinerator stack because the facility was not yet in operation.
The risk assessment evaluated three broad classes of chemicals that
may be present in the WTI incinerator's emissions: organic
(carbon-based) compounds, metals, and acid gases. The list of
individual chemicals included in the assessment is from EPA's
literature and from emissions reports from similar incinerators in
the United States and abroad.
Chemicals likely to be of concern at an incinerator such as WTI's
were used in the preliminary screening. EPA has already conducted
toxicity assessments for this group of chemicals, and EPA-verified
toxicity values (that is, cancer potency factors for carcinogens and
reference doses for noncarcinogenic toxicants) are available for most
of them. In some cases, the health-based National Ambient Air
Quality Standards were used as the levels of concern.
Regional meteorological data and estimates of average- and worst-case
emissions were used to assess the potential exposure of a
maximum-exposed individual. The risk characterization compared the
projected levels of exposure with levels of concern to reach
conclusions about the potential for toxic effects from exposure to
the incinerator's emissions.
Results. Results indicate that the stack emissions from the
incinerator should not present an unreasonable risk to human health,
provided the facility complies with all emissions standards imposed
by Region V. Again, the assessment assumed that over a 70- year
lifetime, an individual with a body weight of 70 kilograms and an
inhalation rate of 20 cubic meters per day has been exposed to
chemical emissions from the WTI incinerator.
For lead and 11 other metals, such as chromium and beryllium, the
cumulative hazard index--a measure of the toxicity of all metals
added together--is below 1 (0.14 and 0.51 at average- and worst-case
concentrations), indicating that adverse effects are not expected in
humans.
For lead, which is known to cause cancer in animals, the exposure
threshold level was slightly exceeded in the worst case contemplated
in the screening. This exposure was calculated to be 11 percent of
the national air quality standard. EPA's standard for individual
incineration facilities is 10 percent. EPA indicated that, at the
11-percent exposure level, there is a significant margin of safety
between predicted exposures and the level of concern for health.
For metals that are known or suspected to cause cancer in humans--for
example, arsenic and chromium--the cumulative lifetime excess cancer
risk was .88 in 1 million people in the average case and 1.4 in 1
million in the worst case. These risks are below EPA's guidance from
the Boiler and Industrial Furnace rule standard of a 1 in 100,000
incremental cancer risk by the inhalation route to the maximally
exposed individual.
For organic chemicals causing toxicity, such as carbon tetrachloride,
the cumulative hazard index is less than 1. The average- and
worst-case hazard indices are 0.0023 and 0.013, respectively. For
those organic chemicals, such as vinyl chloride, that are known or
suspected to cause cancer, the cumulative lifetime cancer risk for a
maximum-exposed individual was 1.1 in 1 million and 3.4 in 1 million,
respectively, for average and reasonable worst cases. This is below
EPA's guidance from the boiler rule standard of a 1 in 100,000
incremental cancer risk by the inhalation route to the maximally
exposed individual.
For acid gases, such as nitrogen oxides, the predicted level of
exposure was below the national air quality standard (0.037 and 0.28
for the average and worst cases, respectively); therefore, adverse
effects are not expected.
Included in EPA's June 1994 letter to us commenting on a draft of
this report is a discussion of a 1993 screening level analysis of
cancer risk due to exposure to emissions of dioxin compounds from WTI
and the status of EPA's update of that analysis. (See app. III for
this discussion.)
PHASE II RISK ASSESSMENT
------------------------------------------------------ Chapter 5:3.2.2
During the implementation of the Phase I risk assessment, Region V
concluded that it would be necessary to conduct a second phase of the
risk assessment to more precisely estimate the impact of the
incinerator on human health. The Phase II risk assessment will
assess risks to human health posed by direct (inhalation) and
indirect (skin exposure, soil ingestion, and foodchain pathways)
exposure to stack emissions from the WTI incinerator. The evaluation
will be based on the results of the March 1993 trial burn and
additional incinerator performance tests that were performed in
August 1993; meteorological data collected at the WTI site over a
1-year period; and exposure data specific to the population
surrounding the WTI facility, such as locations of home gardens,
schools, and farms.
The risk assessment process used by federal regulatory agencies and
proposed for this assessment is essentially that described by the
National Research Council and consists of the following four
components:
1. Hazard identification, in which the chemical substances of
concern in emissions from the facility are identified and data
relevant to the toxic properties of these substances are compiled,
reviewed, and evaluated.
2. Dose-response evaluation, in which the relationship between dose
and response is evaluated for each chemical of potential concern to
derive toxicity values that can be used to estimate the incidence of
adverse effects occurring at different exposure levels.
3. Exposure assessment, in which potential exposure pathways are
identified and measures of chemical exposure are estimated for the
potential exposure pathways, on the basis of various exposure
assumptions and the characteristics of the population receiving the
exposure.
4. Risk characterization, in which numerical estimates of risk are
calculated for each substance by each potential route of exposure
using the toxicity information and the exposure estimates.
The primary source of EPA's guidance for conducting risk assessments
of hazardous waste incinerators is the Methodology for Assessing
Health Risks Associated with Indirect Exposure to Combustor
Emissions, Interim Final (USEPA 1990a). Other guidance that will be
relied upon to complete this risk assessment includes recently
developed EPA guidance documents, such as Guidance on Risk
Characterization for Risk Managers and Risk Assessors (USEPA 1992b),
and the Guidelines for Exposure Assessment (57 Fed. Reg.
22887-22938), which were developed by EPA to clarify and refocus the
requirements for a complete and balanced risk assessment.
The first step in the risk assessment process is to characterize the
nature and magnitude of chemical emissions from the WTI facility.
This involves identifying potential emission sources and substances
of concern in these emissions and the developing contaminant
emissions rates.
The hazard identification portion of the risk assessment involves the
analysis of facilities' potential sources of emissions and the review
and critical evaluation of data relevant to the toxic properties of
substances of concern in these emissions. The primary objectives of
this step of the risk assessment process are to identify the types of
toxic effects associated with each substance of concern and the
conditions of exposure under which these effects might occur.
In the dose-response evaluation, the relationship between the
magnitude of human exposure and the extent of adverse health effects
is determined. This relationship is represented through the use of
toxicity values relating to cancer or noncancer health endpoints.
Exposure assessment involves identifying the potentially exposed
population and measuring or estimating the magnitude of exposure for
individuals in that population. This process comprises several steps
that include (1) defining the study area; (2) identifying the exposed
population and exposure pathways; (3) modeling the concentrations of
chemicals in various environmental media; and (4) estimating the dose
of chemicals from each medium to individuals in the study area.
Risk characterization is the final step of the risk assessment
process. In this step, the chemical toxicity values are used in
conjunction with the doses estimated for each of the various exposure
pathways and population subgroups to estimate quantitatively both
carcinogenic risks and the potential for noncarcinogenic health
effects. In the Phase II Risk Assessment, individual risk will be
estimated and population risks will be evaluated, if sufficient data
are available.
EPA initially estimated the Phase II Risk Assessment completion date
to be December 1993. However, by September 1993 EPA had encountered
several complications in the process that delayed the results of the
Phase II assessment. First, EPA experienced delays in finalizing
contractual relations with A.T. Kearney to do the assessment.
Second, WTI added a carbon injection system in July 1993 to further
reduce its dioxin\9 emissions. Region V staff waited for the results
from the testing of the carbon injection system so that they may be
included in the data set of the risk assessment. Third, EPA Region V
and headquarters are working on a new meteorological model that may
be used in the Phase II assessment. Fourth, EPA headquarters decided
to have both the Phase II assessment project plan and final products
peer-reviewed by non-EPA experts.
The Phase II assessment project plan was completed in November 1993
and submitted for peer review in early December 1993. EPA asked the
peer reviewers to concentrate on technical issues concerning the
science, methods, expected uncertainty, and inferences and to suggest
immediate and long-term recommendations. Region V officials received
the results of the peer review in February 1994, and EPA indicated
that it will develop a risk assessment reflecting the changes
recommended to improve the draft project plan. Once the plan is
completed, it will be executed. Region V officials plan to have a
draft final report to submit for peer review in the spring of 1995
and subsequently issue the final report.
--------------------
\9 See appendix II for a discussion of dioxin as a toxin and EPA's
present dioxin reassessment effort. While the reassessment results
may not be used in WTI's risk assessment, they could be used by the
regulatory agency when renewing WTI's RCRA permit in the future.
EAST LIVERPOOL'S HEALTH
BASELINE STUDY
---------------------------------------------------------- Chapter 5:4
In mid-1991, citizens of the East Liverpool community who were
opposed to the WTI facility and were greatly concerned about the
construction and impending operation of the WTI incinerator, met with
officials of the Ohio Department of Health to discuss their concern
for the health of their families and friends. They brought to the
meeting four areas of concern: (1) lead poisoning; (2) mercury; (3)
dioxin; and (4) the long-term effects of incineration on respiration.
Ohio Department of Health officials heard the citizens and responded
to them by initiating a health baseline study. This study done after
department officials reviewed the area's atmospheric conditions and
the facility's proposed emissions. From this review, Ohio Department
of Health officials were able to conclude that the potential for
health risks does, in fact, exist and that the public has not
necessarily overreacted to perceptions of health risks.
The purpose of the Ohio Department of Health's study is to determine
if exposures to emissions from the WTI incinerator are associated
with a prospective increase in levels of lead in the blood or mercury
in the urine of children. The study, in its initial phases, will
provide baseline information by which department officials can
compare data before and after the full-scale operation of the WTI
facility. The department officials will be able to show trends
between the beginning data and the subsequent sets of data. Data
will be collected on air quality, soil lead content, cancer
incidence, and possible respiratory effects, as determined necessary
and constructive for the outcome of the study. The department plans
on collecting data on lead and mercury levels at 6-month intervals.
The first testing was conducted between September and November 1992.
The second and third data collections took place between March and
May 1993 and September and November 1993, respectively. According to
the Ohio Department of Health, the lead and mercury study will be
completed by December 1994. The department has committed to funding
the baseline study through December 31, 1994.
The study will not address citizens' concerns such as those raised
about dioxin. Department officials decided that costs prohibited
dioxin testing and that the methods currently available to measure
dioxin would not necessarily detect the trace amounts WTI is expected
to emit, much less enable the department to draw conclusions about
any related health risks.
Lead and mercury were the metals chosen for the study for two
reasons: (1) Mercury and lead were expected to be the two metals
released in the greatest amounts by the incinerator and (2) the
health effects of exposure to these metals are relatively
well-defined. Children were determined to be the group of interest
because they are more likely to ingest things contaminated with heavy
metals--for example, dirt--and because lower levels of lead affect
them more adversely than they do adults. Since the emissions from
WTI will be in the form of gases emitted from the stack, inhaled
mercury vapor is a main concern, as is exposure to lead through
direct ingestion.
STUDY IMPLEMENTATION
-------------------------------------------------------- Chapter 5:4.1
Ohio Department of Health officials signed a Memorandum of Agreement
with Ohio EPA officials on November 25, 1991, for a health and
environmental study related to the WTI incinerator. The study is
being managed by the Ohio Department of Health but is primarily
funded by Ohio EPA. The Ohio Department of Health delegated most of
the study implementation to the East Liverpool Department of Health.
Through a grant from the Ohio Department of Health awarded on March
17, 1992, the East Liverpool Department of Health hired two health
educators, as employees, to coordinate and implement the testing.
The East Liverpool Health Department has carried out the bulk of the
work, performing the blood lead and urine mercury testing and
following up on study participants. All laboratory analysis is
conducted by the Ohio Department of Health.
The study consists of six components: (1) measurement of blood lead
in children; (2) measurement of urine mercury in children; (3) air
monitoring; (4) soil sampling; (5) cancer incidence surveillance; and
(6) a respiratory study\10 . An adult blood screening was also
conducted, but results were not used in the baseline study. The East
Liverpool Department of Health, with the assistance of Ohio
Department of Health representatives, administered the blood and
urine testing, the adult blood screening, and the soil sampling.
Ohio Department of Health representatives handled the cancer
incidence surveillance, and Ohio EPA and the NOVAA conducted air
monitoring.
--------------------
\10 In commenting on a draft of this report in June 1994, the Ohio
Department of Health stated that the respiratory study was canceled
because of inadequate community participation.
STUDY RESULTS
-------------------------------------------------------- Chapter 5:4.2
Lead. Parents of school age children in East Liverpool permitted 427
children to participate in free screening for blood lead. The Ohio
Department of Health estimated that 222 children were required for
the study to be scientifically defensible. Of the 427 children
tested during the initial screening period, results showed that 16
had high levels of lead in their blood.
According to the Ohio Department of Health and Centers for Disease
Control guidelines, a blood lead level of 15 micrograms per deciliter
or greater in a child requires follow-up at 3-month intervals and a
home assessment for lead. All 16 of the children identified had an
assessment of their homes for lead. The Ohio Department of Health
identified sources of lead in all of the homes except one. The child
in this home also spent a great deal of time at the grandparent's
house, but the department personnel were not permitted to perform an
assessment there. Since that time, this child has moved out of the
East Liverpool area.
The 16 children with elevated blood lead levels were encouraged to
participate in screening at 3 months and 6 months after the initial
screening. All of the 427 children were encouraged to participate in
screening 6 months after the initial screening, as part of the study.
However, only 250 participated. Only 5 of the 16 children with
elevated blood lead values returned for this round of screening; 2 of
the children still had elevated levels. Two children were newly
identified as having blood lead levels above 15 micrograms per
deciliter. According to an Ohio Department of Health official, these
children received home assessments to determine the possible origin
of their elevated lead levels. Lead paint was found in their homes.
Mercury. One hundred and fifty-two children participated in the
baseline mercury test. According to Ohio Department of Health
officials, a mercury level of 40 micrograms per liter or greater is
cause for concern. None of the children had a level greater than 25
micrograms per liter. Ninety percent of the children had mercury
levels in urine for the baseline measurement between 0 and 4
micrograms per liter.
The procedures by which the laboratory tested and/or reported mercury
levels changed between the baseline and subsequent follow-up tests.
The baseline test results are presented in three categories; 0-4
micrograms per liter, 5-14 micrograms per liter, and 15 and above
micrograms per liter. In the subsequent follow-up tests, the level
of mercury detection was increased to units of 1 microgram of mercury
per liter.
In March 1993, 88 children participated in the first follow-up urine
mercury test. Ninety-four percent of the children had urine mercury
levels between 0 and 4 micrograms per liter. Two children had levels
of 25 micrograms per liter or over. These two children were referred
to their physicians for medical follow-up and repeat urine mercury
testing. In September 1993, 92 children participated in the second
follow-up urine mercury test. Ninety-five percent of the children
had mercury levels between 0 and 4 micrograms per liter. None of the
92 children tested had a level greater than 10 micrograms per liter.
We were able to analyze the mercury levels for 66 children tested in
both March and September 1993 because the measurement procedures used
in these follow-up tests were the same. We found that about 26
percent of the children showed no change in mercury levels, about 17
percent showed decreased levels, and 58 percent showed increased
levels. For those children showing decreased mercury levels, the
average decreased from 2.3 to 0.6 micrograms per liter of urine, a
decrease of about 1.6 micrograms. For those children showing
increased mercury levels, the average increased from 0.3 to 2.5
micrograms per liter of urine, an increase of 2.2 micrograms.
In March 1994, the third follow-up urine mercury test was done. As
of May 1994, the Ohio Department of Health had not completed its
analysis of the results from the test.
Air Quality Monitoring. The Ohio Department of Health requested the
assistance of the Ohio EPA to carry out the air quality monitoring
portion of the health baseline study. In order to study the effects
of WTI emissions on respiration, the Ohio Department of Health
officials needed data on certain emissions for which the Ohio EPA was
not routinely monitoring. Therefore, the Ohio Department of Health
and Ohio EPA, in their Memorandum of Agreement, formalized the duties
and obligations of both parties in the implementation of the health
baseline study. Ohio EPA agreed to furnish the Ohio Department of
Health with data on the results from computer simulations that model
potential releases from the incinerator; test burns conducted, which
shall include the results of stack monitoring, air concentrations of
contaminants during the burn, background measurements, and relevant
meteorological information; and the operation of the facility, which
shall include stack monitoring and the sampling of ambient
concentrations of chemicals released from the facility that are
present in the community. The Ohio Department of Health will consult
with Ohio EPA as necessary on the interpretation of environmental
monitoring data. Ohio EPA, through a contract with the NOVAA, is
collecting data on certain pollutants, such as lead and mercury, in
the air in East Liverpool. In February 1994, the Ohio Department of
Health indicated that on the basis of samples collected in 1992 and
1993, the levels of lead and mercury in East Liverpool air were close
to 0.05 ugm/m\3 for lead and 0.0002 ugm/m\3 for mercury. The
National Ambient Air Quality Standard for lead is 1.5 ugm/m\3 ; there
is no ambient air standard for mercury.
Soil Lead Testing. The Ohio Department of Health included soil lead
testing in the study to establish a baseline level of soil lead
content for which a comparison may be made after the WTI facility is
in operation. Department officials were also aware that East
Liverpool formerly had a large pottery industry and there was concern
that widespread soil lead contamination could exist. The soil lead
testing would determine if, in fact, this is the case. The Ohio
Department of Health and the East Liverpool Health Department sampled
sites in East Liverpool--the local schools and playgrounds--where
large numbers of children had exposure to the soil. The Ohio
Department of Health officials said that the soil results are within
expectations for an urban, industrial area. Two soil samples at an
elementary school yard had values considered to be above normal. The
exact cause of the above normal lead levels is not known, but Ohio
Department of Health officials suggested that it could be due to old
playground equipment covered with lead-based paint. The soil at
these sites has been turned over, and access has been limited through
the planting of vegetation.
Cancer Incidence Surveillance. The Cancer Incidence Surveillance is
a physicians' reporting system that compiles the number of deaths
from different types of cancer as well as new cases of cancer in a
particular geographic location. The reporting system covers the
entire state, and data are collected through the physicians
themselves, who report statistics to the Ohio Department of Health.
Although these data will be considered in analyzing other data
collected for the baseline study, department officials stressed that
it would not be possible to attribute any cancer deaths in East
Liverpool to the WTI facility during the initial phases of the study
because a long latency period is characteristic of the disease. An
Ohio Department of Health official indicated that the department will
continue to monitor cancer incidence using the surveillance system
after the baseline study funding expires in December 1994.
CONCLUSIONS
---------------------------------------------------------- Chapter 5:5
EPA has carried out a number of activities at the WTI facility,
including overseeing a trial burn, monitoring and inspecting the
facility's operations, and conducting a risk assessment to help
ensure that the WTI facility will not adversely affect the health and
the environment of those who live in the East Liverpool area. The
level of effort in all of these areas has exceeded that which is
currently required by the regulations. This effort should provide
additional protection to the community. In addition, the East
Liverpool baseline study being done by the state of Ohio has the
potential to provide its residents with information to compare data
before and after the full-scale operation of the WTI facility.
WTI's trial burn met or exceeded the normal RCRA requirements in a
number of areas, such as dioxin testing. The trial burn results
showed that most, but not all, of the performance standards and
expected levels for emissions were met. In instances in which WTI
did not meet the required or expected emissions limits, either WTI
made incinerator design changes or EPA changed the conditions under
which the incinerator could operate.
EPA and Ohio EPA have met or exceeded their monitoring, inspection,
and enforcement requirements for the WTI facility. The installation
of WTI's continuous monitoring system, to which Ohio EPA has 24-hour
direct access, should provide for better monitoring of the
incinerator's operations by the agency. Also, EPA and Ohio EPA
inspected the WTI facility several times during 1993, exceeding the
required frequency of inspections. In addition, Ohio EPA maintained
a full-time inspector at the WTI site to monitor wastes being
accepted and inspect its operations several times a week. EPA and
Ohio EPA found numerous violations during their RCRA and air
inspections, and while most of the violations were corrected by WTI
immediately after inspectors brought them to WTI's attention, both
EPA and Ohio EPA have taken or are considering enforcement actions
against WTI. None of these violations appeared to create an imminent
danger to WTI's workers and the community.
If and when the WTI facility goes into full operation, the regulatory
agencies will need to continue to closely monitor the operations, to
perform thorough and complete inspections, and to take timely and
appropriate enforcement actions.
The risk assessment being planned by EPA for the WTI facility, if
properly implemented, should result in more precise estimates of the
incinerator's impact on human health in the community than are
presently known. EPA, with these results, could shut down operations
or adjust the operating conditions at WTI, whichever is appropriate,
to ensure that emissions are below health-based risk levels.
RCRA, CLEAN AIR ACT, AND CLEAN
WATER ACT REQUIREMENTS FOR
HAZARDOUS WASTE INCINERATORS
=========================================================== Appendix I
RCRA REQUIREMENTS
------------------------------------------------------- Appendix I:0.1
The Resource Conservation and Recovery Act (RCRA), the major law for
hazardous waste incineration, requires owners and operators of
treatment, storage, and disposal facilities to obtain an operating
permit and requires the Environmental Protection Agency (EPA) to
establish regulations governing the handling of hazardous wastes.
Key requirements for incinerators are discussed below.
Permits. RCRA regulations require that a RCRA permit establish
appropriate operating requirements, including allowable waste feeds
and operating conditions. The owner/operator may burn only those
wastes specified in the permit and only under operating conditions
specified for those wastes. In addition, the permit may include
other conditions, such as additional performance standards, that the
enforcement authority determines to be necessary to protect human
health and the environment.
Waste Analysis. The owner/operator must submit sufficient data about
the waste to be burned to satisfy requirements for a trial burn plan
or a RCRA permit application. These data would include heating
value, viscosity or physical form, and identification and
quantification of hazardous constituents. The owner/operator must
conduct sufficient waste analysis throughout normal operation to
verify that waste being burned is consistent with permit
specifications.
Performance Standards. The incinerator must achieve 99.99 percent
destruction and removal efficiency for the principal organic
hazardous constituents designated for each waste feed. Hydrogen
chloride emissions are limited to the larger of 4 pounds per hour or
1 percent of stack gas prior to pollution control equipment. In
addition, particulate emissions are limited to 180 milligrams per dry
standard cubic meter when corrected for oxygen in stack gas.
Trial Burn. RCRA permit applicants must submit a trial burn plan or
the results of a trial burn demonstrating compliance with RCRA's
performance standards or submit detailed information demonstrating
that the facility can incinerate the waste with the same results as
other acceptable trial burns. The trial burn plan must include an
analysis of the waste, a detailed engineering description of the
incinerator, a detailed description of sampling and monitoring
procedures, a detailed test schedule, a description of and planned
operating procedures for emissions control equipment, and procedures
for rapidly stopping waste feed and shutting down the incinerator.
The trial burn must enable the enforcement authority to make all
appropriate determinations to confirm compliance with performance
standards and to establish operating conditions. After conducting
the trial burn and analyzing the results, the owner/operator must
provide all data to the enforcement authority.
Operating Requirements. Operating requirements will be specified in
each permit on a case-by-case basis as demonstrated in a trial burn
(or with alternate data) to be sufficient to comply with the
performance standards. Requirements will specify the composition of
the waste feed and acceptable operating limits, including carbon
monoxide content of stack gas, waste feed rate, combustion
temperature, and variations in incinerator design and operation. In
addition, hazardous wastes must not be fed during startup or shutdown
unless the incinerator is operating within the permit conditions.
Finally, the facility must be able to automatically cut off waste
feed to the incinerator if operating conditions deviate from permit
requirements and also must cease operations when changes in waste
feed, incinerator design, or operating conditions exceed permit
limits.
Monitoring and Inspection. The owner/operator must continuously
monitor combustion temperature, waste feed rate, and combustion gas
velocity; continuously monitor carbon monoxide emissions; sample and
analyze waste and exhaust upon request by the enforcement authority;
conduct a thorough visual inspection of the incinerator and
associated equipment daily; and test emergency cutoff systems and
alarms weekly. Monitoring and inspection records must be kept and
placed in operating logs.
CLEAN AIR ACT REQUIREMENTS
------------------------------------------------------- Appendix I:0.2
Incinerators must comply with federal air quality and emissions
standards established by EPA under the Clean Air Act. The Clean Air
Act provides for a federal-state partnership in addressing air
pollution. The act requires EPA to set National Ambient Air Quality
Standards (NAAQS) and provides for states and localities to assume
the responsibility of designing and implementing control strategies
to meet these standards. The NAAQS were established by EPA for six
priority or criteria pollutants: sulfur dioxide, particulate matter,
carbon monoxide, ozone, nitrogen oxides, and lead. The control
strategies to meet the NAAQS are documented in each state's State
Implementation Plan (SIP). An essential component of SIPs is the
issuance of permits specifying emissions limits that owners and
operators of stationary sources, including incinerators, must meet.
EPA is responsible for reviewing and approving the SIPs to ensure
that they are adequate to attain and maintain compliance with NAAQS
and for overseeing state and local implementation of these plans.
Ohio received approval from EPA to issue and administer its air
permits program in 1980. Under Ohio law, stationary sources of air
pollution, such as incinerators, must obtain from Ohio EPA an air
pollution permit-to-install, which is required to begin construction
of a facility, and a permit-to-operate the facility. A first step in
the permitting process is to determine whether the facility is a
"major" or "minor" source within the meaning of the Clean Air Act. A
source is considered "major" if its emissions will exceed (referred
to as "potential to emit") certain threshold levels and "minor" if
its potential to emit is less than the limits. The threshold limits
depend on whether the air quality in the county in which the
construction is proposed meets the NAAQS. An incinerator is a major
emitter if it has the potential to emit more than 250 tons per year
of a criteria pollutant whose levels in the county are at or below
the NAAQS, or 100 tons per year for those pollutants whose levels
exceed the NAAQS.
Ohio law also requires the source to meet EPA's emissions standards
for hazardous pollutants. At the time that Waste Technologies
Industries (WTI) applied for and obtained its permit, new stationary
sources were required to comply with EPA's emissions standards for
the following hazardous pollutants: arsenic, asbestos, benzene,
beryllium, mercury, radionuclides, and vinyl chloride.
In 1990, the Clean Air Act was amended to require EPA to establish
emissions standards for 189 hazardous air pollutants, according to a
10-year schedule prescribed in the act. States are required to
implement these standards or establish their own standards that are
equal to or more stringent than EPA's standards.
CLEAN WATER ACT REQUIREMENTS
------------------------------------------------------- Appendix I:0.3
Under the Clean Water Act, any person responsible for the discharge
of a pollutant into any navigable waters of the United States from
any point source must apply for and obtain a discharge permit.
Because it discharges pollutants into the Ohio River, the WTI
incinerator required such a permit. These permits are issued and
enforced primarily by states, such as Ohio, that have been authorized
by EPA. The permit establishes specific levels of performance, or
discharge limits, the discharger must maintain. It also requires the
discharger to report failures to meet those levels to the appropriate
regulatory agency.
DIOXIN AS A TOXIN AND EPA'S DIOXIN
REASSESSMENT EFFORT
========================================================== Appendix II
DIOXIN AS A TOXIN
------------------------------------------------------ Appendix II:0.1
According to EPA, dioxin is a highly toxic environmental contaminant
which is found worldwide. Dioxin is not a chemical used for any
industrial or commercial purpose but is a byproduct of
high-temperature combustion processes, such as incineration,
involving chlorinated phenolic products. Highly chlorinated dioxin
and furans persist in the environment because of their resistance to
chemical, physical, and biological degradation. This persistence
results in their bioaccumulation in the food chain.
Dioxin is known to cause death in animals if the dose is high enough.
EPA studies show that animals can lose as much as half of their body
weight before death occurs. Atrophy of lymphoid tissues and of the
testes is a result of sublethal, but still highly toxic, doses of
dioxin. The liver is a target organ for dioxin toxicity in many, but
not all, species, as is the stomach, urinary tract, and sebaceous
glands. Dioxin causes birth defects, skin lesions, immunotoxicity,
and cancer in many species, both in the laboratory and in the wild.
For example, the inability of lake trout to reproduce in Lake Ontario
has been attributed to dioxin contamination. In addition, dioxin is
a carcinogen in all species examined. According to EPA experts, all
of the 17 studies in both sexes of rats, mice, and hamsters are
positive. Tumors have been observed on these animals following low
levels of exposure. In addition, dioxin has been shown to cause
multiple tumors with short latency and high potency in fish.
According to EPA, until recently, the only response that had been
documented in people as a result of exposure to dioxin was
chloracne.\1 It is now clear that chloracne is a response to very
high levels of dioxin and that individuals vary greatly in their
degree of sensitivity to dioxin. While the presence of chloracne is
absolute evidence that exposure to dioxin or a related chemical has
occurred, the absence of chloracne in no way proves that no exposure
has occurred. Examination of more sensitive effects has revealed
that humans display sensitivity to the effects of dioxin similar to
that of experimental animals.
For many years, the epidemiological studies were inconclusive in
providing a link between dioxin and cancer in humans. However, an
EPA expert has stated that in the past few years several studies
involving people exposed to dioxin in an occupational setting, both
in the United States and in Europe, have provided strong support for
an association between exposure to dioxin and cancer. In commenting
on a draft of this report in June 1994, EPA stated its position that
although recent studies have provided additional support to conclude
that dioxin is a probable human carcinogen, the studies are still
insufficient to conclude that dioxin is a known human carcinogen.
--------------------
\1 Chloracne is a severe form of cystic acne of the skin. Chloracne
occurs following either dermal or systemic exposure in sensitive
species, including humans. The condition is extremely persistent, in
some cases lasting over 30 years following the initial exposure.
EPA'S DIOXIN REASSESSMENT
STUDY
------------------------------------------------------ Appendix II:0.2
Currently, EPA's Office of Research and Development is undertaking a
major reassessment of the toxic properties of dioxin and the related
family of dioxin-like compounds. The reassessment is looking at the
toxic effects of a whole family of dioxin-like compounds. This
family includes both polychlorinated and polybrominated
dibenzo-p-dioxin and dibenzo-furans and co-planar PCPs. The
reassessment is looking at the full range of toxic effects of these
compounds.
The reassessment involves conducting both new laboratory studies as
well as a careful review and evaluation of all published dioxin
literature. Drafts of several chapters of the reassessment have been
published and were the subject of public workshops held in September
1992. Each of these chapters has been revised, in part, on the basis
of discussions at these workshops. In addition, a new chapter on
risk characterization pulls together the findings of the other
chapters into an integrated whole. The full draft report will be
made available for public comment and will be submitted to the EPA
Science Advisory Board for peer review. A final two-volume document
should be issued in the spring of 1995.
According to EPA, the dioxin reassessment is being conducted using a
new scientific approach that focuses on identifying and understanding
the specific biological mechanisms by which dioxin compounds generate
their toxic effects. The reassessment is at the cutting edge of
toxicological science, and through this approach EPA is gaining
significant new insight into the toxicological complexities of the
dioxin-like compounds.
(See figure in printed edition.)Appendix III
COMMENTS FROM THE U.S.
ENVIRONMENTAL PROTECTION AGENCY
========================================================== Appendix II
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
See comment 2.
See comment 3.
(See figure in printed edition.)
The following are GAO's comments on the Environmental Protection
Agency's letter dated July 14, 1994.
GAO COMMENTS
-------------------------------------------------------- Appendix II:1
1. On the basis of our interviews with and the documentation
received from EPA officials in 1993, we originally concluded that the
screening level risk analysis was a short-term analysis designed only
to assess the risks of WTI's test burn and a period of limited
commercial operation, assumed by EPA to be a total of 12 months.
Thus, we did not include a discussion of the analysis. Now, however,
because the Phase II Risk Assessment has been delayed at least a
year, the screening level risk analysis and its ongoing update have
taken on added significance to support EPA's conclusion that no
unreasonable risks from WTI's emissions of dioxin compounds will be
accrued to the community in the interim. We have revised chapter 5
to acknowledge the presence of the screening level risk analysis.
2. We do not believe that chapter 5 of the report should state what
the Ohio baseline study was not designed to do. We believe that the
report clearly states that the purpose of the Ohio Department of
Health's study is to determine if exposure to emissions from the WTI
incinerator are associated with a prospective increase in levels of
lead in the blood or mercury in the urine of children.
3. We revised appendix II to reflect EPA's position that current
studies are insufficient to conclude that dioxin is a known human
carcinogen.
(See figure in printed edition.)Appendix IV
COMMENTS FROM THE OHIO
ENVIRONMENTAL PROTECTION AGENCY
========================================================== Appendix II
See comment 1.
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
The following are GAO's comments on the Ohio Environmental Protection
Agency's (Ohio EPA) letter dated June 28, 1994.
GAO COMMENTS
-------------------------------------------------------- Appendix II:2
1. We revised chapter 4 to state that WTI plans to use and evaporate
some of the "B" water in the incineration process.
2. We revised chapter 1 to clarify the report's discussion on WTI's
filing of applications for permits.
3. In chapter 1, we deleted the sentence that Ohio EPA suggested be
deleted and revised the section to reflect the EPA regulations, 40
C.F.R. 270.51, that state that if a permittee in a state with an
authorized RCRA program has submitted a timely and complete
application under applicable state law and regulations, the terms and
conditions of an EPA-issued RCRA permit continue in force beyond the
expiration date of the permit until the effective date of the state's
issuance or denial of a state RCRA permit.
Whether or not Ohio EPA reissues its hazardous waste permit as a RCRA
permit before 1995 is a decision for Ohio EPA. However, this
decision will not change Ohio EPA's responsibility, as a state with
an authorized RCRA program, to issue or deny a RCRA permit to WTI.
4. We revised chapter 3 to indicate that WTI's permit applications
to the federal and state agencies proposed to fill the site to
elevate it to the 500-year floodplain level.
5. We revised chapter 3 to indicate that the state permit issued to
WTI required that the site be elevated to the 500-year floodplain
level.
6. We revised chapter 5 to update information on Ohio EPA's
inspection and enforcement efforts.
7. We revised chapter 5 to update information on Ohio EPA's proposed
administrative consent order.
8. Chapter 5 was revised to reflect a recent agreement in principle
between Ohio EPA and WTI concerning the funding of three dedicated,
full-time state inspectors at the WTI facility.
9. As mentioned above, chapter 5 was changed to update the status of
Ohio EPA's administrative consent order that was sent to WTI.
10. We deleted the sentence stating that no enforcement actions were
taken against WTI under the water program because earlier in the
report we indicated that Ohio EPA had not conducted any water-related
inspections. Thus, no violations and enforcement actions should have
been expected.
(See figure in printed edition.)Appendix V
COMMENTS FROM THE OHIO DEPARTMENT
OF HEALTH
========================================================== Appendix II
(See figure in printed edition.)
The following are GAO's comments on the Ohio Department of Health's
letter dated June 29, 1994.
GAO COMMENTS
-------------------------------------------------------- Appendix II:3
1. We revised chapter 5 to reflect the current status of the
baseline study.
2. We modified chapter 5 to indicate that the study will not address
all of the citizens' concerns.
3. As part of the report's discussion on concerns about lead
emissions, we revised chapter 5 to emphasize the ingestion of lead as
a main concern of exposure.
4. We revised chapter 5 to drop the reference that the two health
educators were hired by East Liverpool Health Department as
consultants.
5. We revised chapter 5 to indicate that of 427 children tested
during the initial screening period, results showed that 16 had high
levels of lead in their blood.
6. We revised chapter 5 to reflect information provided by the Ohio
Department of Health on home lead assessments for the two children
found to have elevated levels of lead.
7. We did not attempt to determine what might have accounted for any
changes in lead levels between the initial baseline tests and
subsequent follow-up tests.
8. We did not attempt to draw a conclusion from our analysis.
However, none of the 66 children tested in both the March and
September 1993 follow-up tests had mercury levels in their urine
greater than 10 micrograms per liter, which is well below the 40
microgram level of concern, as expressed by Ohio Department of Health
officials.
9. We revised chapter 5 to reflect the reported data on lead and
mercury in the air in East Liverpool.
(See figure in printed edition.)Appendix VI
COMMENTS FROM THE ATTORNEY GENERAL
OF OHIO
========================================================== Appendix II
(See figure in printed edition.)
The following are GAO's comments on the letter from the Attorney
General of Ohio, dated June 15, 1994.
GAO COMMENTS
-------------------------------------------------------- Appendix II:4
1. We revised chapter 2 to avoid the implication that the Ohio
Attorney General relied on the partnership agreement.
2. We recognize that the Ohio Attorney General's conclusion was
based on more than Ohio partnership law. As we state later in
chapter 2 of the report, the Attorney General found that WTI had
violated Ohio's hazardous waste law in not applying for or receiving
a revision or modification of its permit. We made a minor revision
to the text to clarify this point.
(See figure in printed edition.)Appendix VII
COMMENTS FROM WASTE TECHNOLOGIES
INDUSTRIES
========================================================== Appendix II
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
See comment 7.
(See figure in printed edition.)
See comment 12.
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
The following are GAO's comments on Waste Technologies Industries'
(WTI) letter dated June 27, 1994.
GAO COMMENTS
-------------------------------------------------------- Appendix II:5
1. We understand the difficulties that WTI may have had in reviewing
the pertinent sections of the report that relate to WTI's activities,
and we appreciate its comments. Generally, when we provide an
outside organization an opportunity to comment on a report, we
provide only those pertinent sections or excerpts from the report
that relate to the specific activities of that organization to ensure
that we are accurate and complete in our discussions of those
activities.
2. While many groups and individuals have identified many areas of
concern about the WTI facility, we evaluated those issues that we
considered important in responding to a request by several Senators
and Members of the House of Representatives. We believe that this
report meets our obligation by providing a complete, factual, and
balanced presentation of these issues. Because WTI received only
limited excerpts from a rather voluminous report, we recognize that
WTI may not have been able to view our discussion of the issues
within the broader context in which they are addressed in the report.
3. Chapter 4 discusses in some detail WTI's limits on lead
emissions.
4. We discuss the results of some of the testing for dioxin
emissions in chapter 5 of this report. Specifically, we discuss the
results from the March 1993 initial trial burn, which required the
measurement of dioxin emissions, and the August 1993 test of the
enhanced carbon injection system, which EPA used to determine whether
to approve WTI's installation and use of the injection system. We
also state in the report that EPA's October 1993 approval of the
enhanced carbon injection system included a requirement that the
incineration system be tested quarterly following an approved
performance test plan for the first year after the permit
modification became effective and then annually. Chapter 5 has been
revised to refer the reader to WTI's table that shows dioxin
measurements resulting from tests that WTI conducted between March
1993 and April 1994.
5. Our draft report does not include a discussion of WTI's comment
that the carbon injection system has largely eliminated the emissions
of mercury because WTI has not conducted any EPA-approved testing of
the incinerator system's mercury removal efficiency since the initial
trial burn results showed that mercury emissions exceeded the
permitted limits. Without information on the methodology used to
measure the mercury emissions, it is not possible to determine the
validity of the information provided by WTI.
6. We did not evaluate the particular technology used in the WTI
incinerator or compare its performance with other incinerators in
this report because it was beyond the scope of our review.
7. We revised chapter 1 to reflect WTI's comment that the real
property has been purchased by WTI.
8. We revised chapter 1 to indicate that the sources of hazardous
waste identified and the list of excluded wastes are not complete.
9. We revised chapter 1 to reflect WTI's comment that there were two
permits.
10. Chapter 2 of the report has been revised to clarify that EPA
determined from a 1987 amendment to WTI's Joint Venture Agreement and
a 1990 contract between WTI and Von Roll (Ohio), Inc., that
operational control of WTI changed. The report's description of
WTI's position on this issue has been revised to incorporate WTI's
additional comments. The issue we were specifically asked to
address, whether EPA had authority to modify WTI's permit after a
change was made in operational control, was based on EPA's view that
operational control had changed. Therefore, for purposes of
discussing the issue, our analysis assumes that such a change
occurred.
11. We made no change in the report text. While not binding on Ohio
courts, the federal district court's opinion in Fairway applied Ohio
law. We reported that Fairway was cited by the interested WTI
parties to address the issue of what an Ohio State court, applying
Ohio law, might do if ruling on the WTI situation.
12. We revised chapter 2 to reflect WTI's comment that not all of
the officers and directors of the four partners are the same as for
Von Roll America, Inc. According to WTI's counsel, one of the
officers of Von Roll (Ohio), Inc., is not an officer of Von Roll
America, Inc.
13. We used the term "identified" in the broad sense primarily
because, as we state in the previous paragraph, which was not
provided to WTI for comment, "[the] RCRA regulations require that a
permit application for a hazardous waste facility identify whether
the facility is located in a 100-year floodplain," and we believe
that WTI met this requirement. Additionally, the word "floodplain"
as used here refers to the regulatory 100-year floodplain. On the
basis of these comments, however, we have revised this sentence to
more precisely state what occurred.
14. See GAO comment 10 for our response.
15. The record in question is an August 20, 1990, letter from the
EPA Region V Acting Director of the Waste Management Division to the
Project Manager for Waste Technologies Industries. That letter
states, "Such changes are considered major permit modifications in
the old (and new) permit modification rule." We added the
parenthetical statement "either a Class 2 or Class 3 modification,"
because that is how major modifications are now classified and were
classified under the permit modification rule in effect when WTI was
considering adding the spray dryer to its incineration system.
16. We revised chapter 3 to recognize that WTI applied for a Class 1
modification.
17. Our draft report did not characterize the dioxin levels as high
in an absolute sense. Rather, the point was that the dioxin levels
measured during the trial burn were higher than EPA had expected. We
based this assessment on information obtained during our review
showing that average dioxin levels measured during the trial burn
were 2.8 times higher that dioxin levels used in EPA's 1992 Phase I
Risk Assessment, and not one-third lower as WTI suggested in its
comments.
18. See our response to comment 4.
19. We revised chapter 5 to update the report's discussion of WTI's
remote access system.
MAJOR CONTRIBUTORS TO THIS REPORT
======================================================== Appendix VIII
RESOURCES, COMMUNITY, AND
ECONOMIC DEVELOPMENT DIVISION,
WASHINGTON, D.C.
------------------------------------------------------ Appendix VIII:1
Gerald E. Killian, Assistant Director
Ned L. Smith, Evaluator-in-Charge
William H. Roach, Jr., Senior Evaluator
OFFICE OF THE GENERAL COUNSEL
------------------------------------------------------ Appendix VIII:2
Doreen Stolzenberg Feldman, Assistant General Counsel
John T. McGrail, Senior Attorney
CINCINNATI REGIONAL OFFICE
------------------------------------------------------ Appendix VIII:3
Roger S. Corrado, Senior Evaluator
Laurie R. Housemeyer, Staff Evaluator