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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 21 1992
OFFICE OF
GENERAL COUNSEL
MEMORANDUM
SUBJECT: Recent Administrative and Judicial Decisions Regarding
Consideration of Source Separation in Determining Best Available
control Technology Under PSD
Citizens for Clean Air v. EPA, No. 90-70119 (9th Cir., March 26,
1992
Brooklyn Navy Yard, PSD Permit Appeal No. 88-10 (Remand Order,
February 28, 1992)
FROM: Jeffrey B. Renton, Attorney
Air and Radiation Division, LE-132A
Gregory B. Foote
Assistant General Counsel
Air and Radiation Division, LE-132A
TO: William G. Rosenberg
Assistant Administrator
for Air and Radiation, ANR-443
THRU: Alan W. Eckert
Associate General Counsel
Air and Radiation Division, LE-132A
The purpose of this memorandum is to advise you of two recent
developments regarding the issue of source separation under the Clean Air
Act's prevention of significant deterioration (PSD) program.
On March 26, 1992, the United States Court of Appeals for the
Ninth Circuit affirmed two decisions by the Administrator denying
appeal of a PSD permit for the Spokane, Washington municipal waste
combustor (MWC). Citizens for Clean Air v. U.S. EPA, No. 90-70-119
(9th Cir., March 26, 1992) (copy attached). In the challenged decisions,
the Administrator upheld the refusal of the Washington Department
of Ecology (Ecology), acting as EPA's delegate, to consider materials
separation as part of the best available control technology (BACT)
analysis for the Spokane incinerator. See Spokane Regional Waste-to-Energy,
PSD Appeal No. 88-12 (Order Denying Review, June 9, 1989) (Spokane
I), and Spokane Waste-to-Energy Project, PSD Appeal No. 89-4 (Order
Denying Review of Revised Permit Determination, January 2, 1990)
(Spokane II).
However, the Spokane decisions and their affirmation in Citizens for
Clean Air have been largely superseded as to materials separation issues by
a more recent PSD permit appeal decision. See Brooklyn Navy Yard, PSD
Appeal No. 88-10 (Remand Order, February 28, 1992) (copy attached). In
Brooklyn Navy Yard, the Administrator followed the reasoning set forth in
EPA's final new source performance standards (NSPS) for MWCS, as well as
other developments since the Spokane permit was issued, finding that source
separation for NOx is now an available control technology for PSD purposes.
Hence, he remanded the permit and ordered EPA Region II to consider source
separation in determining BACT for NOx.
As a result of Brooklyn Navy Yard, PSD permit applicants should
consider source separation, in combination with more conventional control
technologies, in their BACT analyses for any proposed MWC. Of course, the
permitting authority retains discretion whether to finally require any
particular level of separation (or none at all) after considering source-
specific energy, environmental, and economic impacts, and other costs.
Attached is a more in-depth discussion of the main issues addressed in
the above cases.
Attachments
cc: Raymond B. Ludwiszewski, LE-130
Michael Shapiro, ANR-443
Rob Brenner, ANR-443
John Seitz, ANR-443
Gerald Kotas, PM-222B
Lydia Wegman, OAQPS (MD-10)
John Calcagni, OAQPS (MD-15)
Air Division Directors, Regions I-X
Regional Counsel Air Team Leaders, Regions I-X
DISCUSSION
Summary of the Spokane Case
In Spokane I, the Administrator found that Ecology had not committed
clear error in failing to consider source separation in combination with
other pollution control technologies as part of the BACT analysis.[See
footnote 1] The Administrator reasoned that the petitioners (local citizens
groups) had failed to produce "hard data" demonstrating that materials
separation in combination with other controls would have a significant
beneficial impact upon emissions. Although the citizens groups had provided
some evidence for their "common sense" conclusion that less garbage burned
means less pollution, the referenced studies were inapposite as they did not
adequately address materials separation when used in combination with other
controls. Nevertheless, the permit was remanded on other grounds, for the
limited purpose of implementing an agreement to modify the BACT
determination for NOx (to reflect use of thermal de-NOx, i.e., selective
noncatalytic reduction, or an equivalent control technology). On subsequent
appeal, in Spokane II, the Administrator refused to revisit the materials
separation issue, noting the limited nature of the earlier remand.
Upon review in Citizens for Clean Air, the Ninth Circuit Court of
Appeals held that the Administrator was not arbitrary, capricious or outside
of his statutory right in allowing the permit to issue absent consideration
of materials separation in the BACT analysis. The court credited the
Administrator's concern at that point in time over the lack of "hard data,"
finding that its absence made "quantification" difficult for assessing the
impact of materials separation in combination with "in the stack" pollution
control technologies.[See footnote 2] Significantly,
_______________
Footnote 1. Washington (and approximately one-third of the other states)
lacks an approved PSD program in its SIP. Thus, EPA's PSD regulations at 40
CFR 52.21 have been promulgated as a federal implementation plan in the
State, see 40 CFR 52.2497, and EPA has delegated implementation of this
program to Ecology under 40 CFR 52.21(u). Pursuant thereto, PSD permits
issued by Ecology are federal permits subject to EPA's consolidated permit
regulations at 40 CFR Part 124, including the appeal procedures in 40 CFR
124.19.
Footnote 2. Rather than endorsing EPA's statutory justification,
the court instead focused on the procedural requirement that the
permitting authority respond to "significant" comments. See 40 CFR
124.17(a)(2). In the court's view, Petitioners' lack of hard data
rendered their comment not "significant." This reasoning is the
court acknowledged the applicability of EPA's "top-down" guidance,
finding that it would be difficult to rank technologies pursuant
to that methodology in the absence of hard data or quantification.[See
footnote 3]
Summary of the Brooklyn Navy Yard Case
The recent PSD appeal decision by the Administrator in Brooklyn Navy
Yard renders much of the Ninth Circuit opinion immaterial. In Brooklyn Navy
Yard, the Administrator found that Region II erred in failing to consider
materials separation in combination with conventional control technologies
for nitrogen producing waster. He distinguished his Spokane decisions by
noting (1) the more specific nature of materials separation issue raised
here, (2) the Petitioner's provision of a more recent study, and (3) the
fact that Region II required separation of NOx-producing wastes if necessary
to meet the emissions limit, and thereby implicitly determined that "certain
separation programs are likely to reduce NOx emissions." See Brooklyn Navy
Yard at 13.
_______________
Footnote 2 (... continued)
somewhat curious because, in fact, Ecology did provide a written response to
petitioners comments -- it rejected them. The court disregarded this sort
of response, apparently interpreting 40 CFR 124.17(a)(2) as requiring that
EPA "substantively" respond to a significant comment, i.e., consider
materials separation as part of the BACT analysis. See Citizens for Clean
Air, Slip Op. at 2996-99.
Footnote 3. Regarding the standard of review, the permitting regulations at
40 CFR 124.19 limited review by the Administrator to instances where
important policy concerns are implicated or the permitting authority commits
"clear error." (This review authority was recently transferred to the newly
constituted Environmental Appeals Board. See 57 FR 5320 (Feb. 13, 1992).)
In declining review in Spokane I and Spokane II, the Administrator held that
Ecology did not clearly err; thus, EPA sought to have the court review only
whether this determination was arbitrary or capricious. The court declined
that approach, however, scrutinizing instead the totality of the permitting
proceeding, including the decisions made by Ecology, under a "deferential"
arbitrary and capricious standard. Citizens for Clean Air, Slip Op. at
2994-95. EPA should keep the court's reasoning on this point in mind in
considering future permit appeals.
Also, relevant to the outcome in the Brooklyn Navy Yard case was the
fact that, since the Spokane decisions, EPA issued final NSPS regulations
for MWCs that embodied a policy decision to address source separation in the
context of new or modified sources on a case-by-case basis through the PSD
program. The NSPS rulemaking included a finding that materials separation
"used in conjunction with good combustion practices, and add-on controls,
will result in further reductions of emissions from MWC's," even though the
Agency concluded at that time that "the amount of emissions reduction cannot
be accurately predicted." Brooklyn Navy Yard at 12 (quoting NSPS proposal,
54 FR 52,251, 52,257, 52,281 (Dec. 20, 1989)). Although EPA did not require
materials separation on a national basis in the final NSPS regulations, it
determined that the issue "may continue to be raised on a case-by-case basis
in individual BACT determinations under CAA section 169(3)." Id. at 13
(quoting final NSPS, 56 FR 5,496 n.4 (Feb. 11, 1991).
"Downsizing" as a Consequence of Source Separation
In Citizen for Clean Air, the court rejected petitioner's "common
sense" argument that less materials burned means less pollution under the
circumstances of that case. Instead, it found persuasive EPA's rationale
that when materials separation was called for in combination with in-the-
stack controls, further reductions might not follow. Thus, since the
citizens groups had failed to specify what materials would be removed and
what pollutants reduced, the court found that EPA acted reasonably in
upholding the permit. However, the Spokane case only addressed the question
of whether source separation would reduce emissions per ton of waste burned.
Neither the Administrator nor the court had occasion to address "downsizing"
-- reducing the size of the facility and, hence, the amount of waste
incinerated -- as a consequence of source separation.
Nevertheless, in the NSPS rulemaking, EPA pointed out that a source
separation requirement would, in the aggregate, lead to less incineration,
and smaller or fewer incinerators in many specific cases. (In other
instances, source separation may result in an increased service area.)
Although, as noted above, EPA was unable to quantify a specific amount of
emissions reductions per ton burned as a result of source separation, it
readily concluded that downsizing prompted by source separation would result
in fewer total emissions.
The Brooklyn Navy Yard decision also addressed downsizing. The permit applicant
argued that because nearly 80% of all waste charged by an MWC emits
nitrogen when burned, NYPIRG was essentially requesting that the
source be entirely redefined.
The Administrator did not agree, holding that the materials separation to be
considered on remand fits within the statutory definition of fuel cleaning.
This is because Region II remains vested with discretion to determine "an
appropriate level of separation, if any, considering costs and other
relevant factors." Brooklyn Navy Yard at 18.[See footnote 4] In the end,
the Administrator made clear that his intent was neither to reconfigure the
proposed facility, nor cause any significant change to its planned use. Id.
at 20, n.7.[See footnote 5] Nevertheless, the Administrator emphasized that
those contemplating future construction of MWCs might anticipate the need to
consider source separation, and as a result may well "plan for construction
of a smaller facility or to expand the MWC service area beyond what it might
have been in the absence of source separation." Id. Although such a result
would not be compelled, its possibility is consistent with the overall "air
quality planning and pollution prevention purposes of the PSD program." Id.
See CAA section
_______________
Footnote 4. The Administrator noted that appropriate cost-criteria include,
on the one hand, the cost of collection, trucks, wages, and the overall
cost-effectiveness of separation, and on the other hand, revenue from sales
of recycled material, avoided trash collection expense, and air benefits.
Brooklyn Navy Yard at 18-19.
Footnote 5. In the past, EPA has taken the position that the BACT analysis
should not provide commenters or petitioners an opportunity to "redefine the
source" by forcing the applicant to consider construction of a facility that
is significantly different from the one proposed. See, e.g., Pennsauken
Resource Recovery Facility, PSD Appeal No. 88-8 (Remand Order, Nov., 8,
1988) at 11. We note, however, that this position, while reasonable, is not
compelled by the statute. PSD permitting authorities may, through the BACT
provision or other aspects of PSD review, require construction of a
significantly different source or even deny the application altogether. For
example, in the 1990 Amendments, Congress revised the statutory definition
of BACT in section 169(3) of the Act to require consideration of "clean
fuels" as a pollution control technology. In addition, section 165(a)(2)
provides that the public hearing held to consider a PSD permit must include
an opportunity to make presentations on "alternatives" to the proposed
source. Also, the legislative history of the 1977 Amendments asserts that
Congress intended to give states broad flexibility to condition a PSD permit
according to local desires, and may deny the permit if it could alter the
character of the community. See S. Rep. No. 95-127, 95th Cong., 1st Sess.
31 (1977).
169(3) (definition of BACT contemplates use of "production processes and
available materials, systems, and techniques, including fuel cleaning, clean
fuels, or treatment or innovative fuel combustion techniques ...."); see
also note 9, supra.
Affirmation of the Legality of EPA's Top-Down Policy
As noted above, in Citizens for Clean Air, the Ninth Circuit implicitly
approved EPA's application of the top-down BACT policy. Although none of
the parties or intervenors challenged the legitimacy of the top-down policy
itself, the manner in which it was applied was at the heart of the case. In
order to reach and ultimately uphold that application, the court reviewed
the policy as the embodiment of EPA's interpretation of the statutory BACT
definition. As such, the court's analysis serves to refute the criticism
from some quarters that the top-down policy is inconsistent with the Clean
Air Act.
The court observed initially that the PSD permit procedure "imposes
different burdens on different parties at various stages of the process."
Citizens for Clean Air, Slip Op. at 2992. The court then noted that in
Spokane I the Administrator had concluded, relying on guidance memoranda,
that the statute imposes a burden on the permit applicant to identify the
"available" control technology that will produce the maximum degree of
reduction of each regulated pollutant. The court further noted that under
the top-down methodology, the applicant also has the burden of demonstrating
that the "best" (i.e., most stringent available) technology is inappropriate
under the statute. Id. at 2993 ("[t]he burden of identifying and applying
[BACT] thus lay with Spokane during the proceedings before Ecology"). Thus,
the court upheld EPA's view that a petitioner, and not the permit applicant,
has the burden of demonstrating that a new and unproven (for BACT purposes)
technology should be considered in the BACT analysis, and that EPA acted
reasonably in rejecting the citizen groups, claims given the absence of an
adequate quantitative showing regarding the effectiveness of source
separation in conjunction with conventional state-of-the-art control
technologies. Id. at 2992-3003. In the end, the court found no error in
EPA's construction of the statutory BACT definition. Id. at 3003.
Quantification of Emissions Reductions from Source Separation
The court in Citizens for Clean Air, Slip Op. at 3000, stated
that "the top-down ranking methodology for [BACT] requires some
kind of quantification of effectiveness in order to rank technologies."
This goes a step too far. As the Administrator plainly states in
Brooklyn Navy Yard, under EPA's regulations for BACT, work practice,standards
may be substituted for or combined with emissions standards if quantification
proves difficult. Brooklyn Navy Yard at 19-20. Thus, while the court
is correct that the top-down methodology requires enough information
to rank effectiveness of different control alternatives, the Brooklyn
Navy Yard decision makes clear EPA's position that precise quantification
is not necessary in all circumstances. This reasoning would apply
equally to any other analytical framework, including a "bottom-up"
methodology, for addressing the core criteria of the BACT definition
-- i.e., consideration of all available control technologies in
determining the maximum degree of reduction achievable in light
of source- specific energy, environmental, and economic impacts,
and other costs.
Obligation to Consider Source Separation as an Available Control Technology
in Future Decisions
As discussed above, in Brooklyn Navy Yard the Administrator determined
that source separation is now an available control technology. See, e.g.,
pages 10, 14-15, 20 n.7. Although the decision does not explicitly mandate
consideration of source separation in future permit proceedings, it strongly
suggests that it would be desirable to do so. Moreover, by virtue of the
iterative nature of the BACT development process, the decision effectively
calls for consideration of source separation as part of the BACT
determination process for all future MWCs needing PSD permits. That is,
once a technology crosses the threshold of availability for BACT purposes it
remains there, and, the need to consider it in subsequent permit proceedings
flows directly from the logic of the BACT system. In addition, given the
local controversy engendered by virtually every new MWC, it is reasonable to
anticipate that local citizens groups will call upon future PSD applicants
and permitting authorities to consider source separation. Thus, it follows
that applications that do not reflect consideration of source separation run
a significant risk of administrative and judicial appeals based on such
failure.[See footnote 6]
_______________
Footnote 6. In states without SIP-approved PSD programs, appeals
will be directed to EPA. Based on the nature of the issue and the
pattern of past development of case law under 40 CFR 124.19, it
seems likely that the Environmental Appeals Board would follow the
precedent in Brooklyn Navy Yard and remand any permit that had not
addressed source separation, provided the request is sufficiently
specific and narrowly tailored. In states with approved PSD SIPS,
applicants who fail to consider source separation would face the
possibility of citizen challenges.
For all of these reasons, the likelihood that source separation will
ultimately have to be considered is high enough that prudent applicants
likely will not contest the need to incorporate source separation into their
BACT analyses. They probably will instead seek to minimize the impact of
source separation procedurally, in terms of the time and effort needed to
conduct the BACT analysis, and substantively, in terms of the stringency of
any source separation/recycling requirements that might emerge in a final
permit.
In the wake of the Administrator's decision in Brooklyn Navy Yard, EPA
may want to consider whether to issue guidance to state and regional office
permitting authorities. We would, of course, be happy to work with your
staff in this regard.
_______________
Footnote 6 (...continued)
through state administrative and judicial channels, as well as the prospect
of EPA enforcement action under Clean Air Act Sections 113 and 167.
Footnote 7. According to news articles, the Brooklyn project itself has
been put on hold until 1996 by New York City Mayor David Dinkins.
(Apparently, this deferral was driven by local political considerations, not
EPA's Remand Order.)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
|
CITIZENS FOR CLEAN AIR | | | | | |
COUNCIL FOR LAND CARE AND | | | | | |
PLANNING, | | | | | |
Petitioners, | | | | | |
v. | | | | | |
UNITED STATES ENVIRONMENTAL | | | | | No. 90-70119 |
PROTECTION AGENCY, and | | | | | PSD No. |
WASHINGTON DEPARTMENTS OF | | | | | 89-4 |
ECOLOGY, | | | | | OPINION |
Respondents, | | | | | |
CITY OF SPOKANE, and | | | | | |
WHEELABRATOR SPOKANE, | | | | | |
Inventors. | | | | | |
| | | | |
Petition to Review a Decision of the
Environmental Protection Agency
Argued and Submitted
November 9, 1990---Seattle, Washington
Filed March 26, 1992
Before: Thomas Tang, Diarmuid F. O'Scannlain and
Edward Leavy, Circuit Judges.
Opinion by Judge Tang
2981
2982 CITIZENS FOR CLEAN AIR v. EPA
SUMMARY
Environmental Law
The court of appeals denied a petition for judicial review of orders of
the Environmental Protection Agency, holding that EPA approval of a
municipality's plan to construct and operate a waste incinerator was not
arbitrary or capricious for the agency's failure to consider recycling as a
best available control technology where no hard evidence was presented to
show the potential effectiveness of fuel cleaning and separation in
combination with existing smoke-cleaning devices.
In 1984, the City of Spokane sought to obtain an EPA permit to
construct and operate a mass burn incinerator that would convert refuse to
marketable energy. The City filed an application with the state's
Department of Ecology (Ecology) for a "prevention of significant
deterioration of air quality" (PSD) permit, under the Clean Air Act. The
City's plan included only limited provisions for removal of recyclable
materials from the waste stream, relying instead on combustion and "in the
stack" technologies to reduce air pollution. Petitioners, the Citizens for
Clean Air and the Council for Land Care and Planning, objected because the
proposal did not include recycling as a best available control technology
(BACT) to reduce air pollution. Citizens supported its comments with three
recycling studies. Ecology rejected consideration of recycling as a BACT
and approved the permit Citizens appealed to the EPA Administrator, who
issued an order denying review of the permit ("Spokane I"). In 1989, after
permitting additional comments, Ecology issued revised final approval.
Citizens petitioned the EPA Administrator for review, arguing that a revised
standard for nitrogen oxide emissions was still too high because it did not
account for reductions that would result from a more vigorous waste
reduction and recycling program. The petition made reference to the pending
proposed new EPA rule and also included a
CITIZENS FOR CLEAN AIR v. EPA 2983
study of a successful recycling program in Seattle. Again, the
Administrator denied review ("Spokane II"), ruling that Citizens had failed
to show that Ecology had committed clear error in refusing to consider
recycling as a best available control technology. The administrator also
dismissed as moot the contention regarding nitrogen oxide emissions,
remanding to Ecology to set new pollutant standards, after Spokane agreed to
install the necessary technology. Citizens petitioned the court of appeals
for review of the Administrator's orders. Shortly after Spokane's 1987
permit application, the EPA proposed new rules for municipal waste
combustors such as Spokane's. The EPA noted that common sense recycling is
an appropriate technology for reduction of air pollution from incinerators
and also noted the difficulty in quantifying emission reductions
attributable to recycling. Final approval of this rule was still pending
when Citizens petitioned the court of appeals for review.
[1] With respect to the Spokane I order, Citizens argued that the
Administrator erred in holding Citizens to an especially heavy burden of
providing hard data in support of recycling as a best available control
technology for the incinerator. [2] Once the PSD permitting process reaches
the public comments stage, comments must be significant enough to step over
a threshold requirement of materiality before any lack of agency response or
consideration becomes of concern. [3] After initial approval of a permit,
the burden shifts to petitioners. [4] The court applies the arbitrary or
capricious standard of review. [5] The EPA did not impose a new "heavy
burden" requiring Citizens to produce hard data concerning recycling before
EPA could be required to consider recycling as possible BACT. [6] Citizens'
argument failed to take into account that the burden of proof at the
permitting stage rested on the permit applicant, not the EPA.
[7] Citizens contended that the Administrator erred in concluding that
Citizens' comments on the PSD application were not significant enough to
require Ecology either to request a
2984 CITIZENS FOR CLEAN AIR v. EPA
response from the City or otherwise to consider recycling as a BACT. [8] The
Administrator found that recycling was such "uncharted territory" that
Citizens did not show Ecology clearly erred in failing to evaluate it in
detail. [9] The Administrator's decision was not arbitrary or capricious.
[10] Citizens offered no hard evidence and did not refer to analogous
technology that would quantitatively validate the effectiveness of its
recycling proposals. [11] Taken by itself, Citizens' common sense approach
cannot stand on its own, once state-of-the-art technologies are considered.
Here, Citizens did not set forth specific issues or evidence in support of
its argument. [12] None of the studies submitted by Citizens supported the
proposition that a recycling requirement would reduce pollution beyond the
reductions to be achieved by installing other technologies already required
by the PSD permit.
[13] Citizens also contended that the Administrator erred in construing
the term "available" to mean "quantifiably effective." [14] Even if the
Administrator erred, Citizens was not prejudiced. The Administrator's
rationale applies with equal force to a "best" as well as to an "available"
determination.
[15] Finally, Citizens argued that the EPA's proposed new performance
standard for municipal incinerators relied on a study and common sense
inferences rejected by the Administrator in denying Citizens' first
petition. [16] Given the distinction between the PSD program and the later
statutory terms of the proposed rule, the Administrator did not act
arbitrarily and capriciously in rejecting Citizens' petition.
[17] With respect to the Spokane II order, the Administrator should not
have cited "repose" as a rationale for denying Citizens' second petition.
However, Citizens offered nothing more specific on remand than it did during
the initial comment period. The Administrator therefore did not act
arbitrar-
CITIZENS FOR CLEAN AIR v. EPA 2985
ily and capriciously in declining to reconsider recycling as a BACT.
COUNSEL
David A. Bricklin, Bricklin & Gendler, Seattle, Washington, for the
petitioners.
Craig D. Galli, United States Department of Justice, Washington, D.C., for
the respondent.
Laurie S. Halvorson, Assistant Attorney General, Olympia, Washington,
(Washington Department of Ecology)(appeared only)
Craig S. Trueblood, Preston, Thorgrimson, Shidler, Gates & Ellis, Spokane,
Washington, for intervenors-respondents, City of Spokane.
OPINION
TANG, Circuit Judge:
Citizens for Clean Air and the Council for Land Care and Planning
("Citizens") petition for judicial review of final orders of the
Environmental Protection Agency ("EPA") denying Citizens' two petitions for
administrative review. Citizens sought EPA review of a Washington
Department of Ecology ("'Ecology") permit for construction of a solid waste
incinerator by the City of Spokane, Washington. The Clean Air Act, as
amended, 42 U.S.C. Sections 7401-7671q, sets standards for the issuance of
permits by state agencies such as Ecology. Citizens alleges that it was
arbitrary and capricious for EPA to uphold the permit issued to Spokane.
Citizens argues that EPA and Ecology failed to consider recycling as
2986 CITIZENS FOR CLEAN AIR v. EPA
a "best available control technology" for air pollution as required by the
Act. We deny Citizens' petition for judicial review.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Planning Stage
In the early 1980s, Spokane began grappling with a shortage of safe
landfill sites for city and county refuse. Contamination of the Spokane-
Rathdrum aquifer forced the closure of three landfills, later designated as
EPA "Superfund" sites. In 1981, Spokane initiated studies of landfill
alternatives, including a mass bum incinerator which would convert refuse to
marketable energy (a "waste-to-energy" incinerator). By 1984, after several
more studies and public hearing, Spokane adopted a comprehensive plan for
solid waste management.[See footnote 1] The comprehensive plan included
plans for recycling, waste reduction, a waste-to-energy incinerator, and, as
a last resort, a new regional landfill. The recycling program increased the
Spokane County recycling rate from 5% of all waste produced in 1984 to 19%
in 1990. The 1990 update of the comprehensive plan sets a recycling goal of
50% by 1995.
The incinerator aspect of the plan also proceeded. First, Spokane
completed environmental impact statements required under Washington law.
Next, in 1987, Spokane contracted with Wheelabrator Environmental Systems
("Wheelabrator") to design and build a waste-to-energy incinerator.[See
footnote 2] Spokane also contracted with a power utility to buy the energy
produced. Finally, in 1987, Spokane initiated the permitting process under
the Clean Air Act.
_______________
Footnote 1. See "1984 Spokane County Comprehensive Solid Waste Management
Plan Update," adopted pursuant to Washington State Solid Waste Management
Act, Wash. Rev. Code ch. 70.95.
Footnote 2. Wheelabrator is an intervenor-respondent in this appeal.
CITIZENS FOR CLEAN AIR v. EPA 2987
B. The Clean Air Act Permitting Stage
1. Statutory Framework
The Clean Air Act includes a scheme for the "prevention of significant
deterioration of air quality," called the "PSD" program. See 42 U.S.C.
Sections 7470-7492. The PSD program requires owners and operators to secure
a permit before construction of certain new stationary sources of air
pollution. Id. Section 7475. Spokane's proposed incinerator qualifies as a
new source of air pollution regulated under the PSD program.
Three features of the PSD program figure in this review Of EPA
decisions. First, all such new sources must meet "'New Source Performance
Standards," which impose various emissions limitations. Id. Section
7411(a), (f). EPA periodically promulgates New Source Performance Standards
under its rulemaking authority. Id. Section 7411(b)(1)(B). Second, the PSD
program requires all new source applicants such as Spokane to install the
"best available control technology" ("BACT") to reduce air pollution. Id.
Section 7475(a)(4). Determination of the best available control technology
is made "on a case-by-case basis, taking into account energy, environmental,
and economic impacts and other costs." Id. Section 7479(3). Third, EPA
regulations for the PSD program require notice, a comment period, and a
public hearing on applications for new sources of air pollution. See 40
C.F.R. Sections 124.10-124.12. Upon final approval of an application by a
state agency, participants in the comment process may petition the EPA
Administrator in Washington, D.C. for administrative review. Id.Section
124.19.
2. Spokane's Permit Application
Pursuant to 40 C.F.R. Sections 52.21(u), 52.2497(b), EPA has
delegated administration of the PSD program in Washington to Ecology. On
August 26, 1987, Spokane filed its PSD permit application with Ecology.
Spokane proposed an incinerator designed to burn 800 tons of solid waste per
day. The
2988 CITIZENS FOR CLEAN AIR v. EPA
proposal included no provision for removal of recyclable materials from the
"waste stream" except for refrigerators and hazardous materials. The
incinerator design instead included combustion and "in the stack"
technologies' to reduce regulated air pollutants. Even with these
technologies installed, Spokane's proposed incinerator will emit hundreds of
tons of, regulated pollutants into the air each year.
During the comment period on Spokane's application, Citizens challenged
the proposed PSD permit because the proposal failed to include recycling as
a "best available control technology" to reduce air pollution. Citizens
noted that recycling would reduce the volume of the waste stream and thereby
necessarily reduce air pollution generated by bunting waste. Citizens
further commented that recycling qualified as the best available control
technology when "taking into account," as the Act requires, "energy,
environmental, and economic impacts and other costs." 42 U.S.C. Section
7479(3). Citizens argued that recycling would minimize
costs uniquely associated with mass burn incineration including revenue
lost from recyclable materials; energy costs associated with
manufacturing from virgin, as opposed to recycled[,] materials;
environmental and other costs due to the mining of raw materials when
recycled materials could be used instead; costs associated with
disposal and handling of hazardous incinerator ash; soil, water, and
plant contamination caused both by air pollution and by leachate from
ash disposal sites; and cumulative effects such as acid rain and ozone
depletion.
In support of its comments, Citizens filed three studies of recycling.
_______________
Footnote 3. "In the stack" technologies include scrubbers inside the
emission stack, for example.
CITIZENS FOR CLEAN AIR v. EPA 2989
Ecology responded to Citizens' comments by rejecting consideration of
recycling as a best available control technology for the Spokane
incinerator. On December 13, 1988, Ecology issued final approval of the
Spokane incinerator permit.
C. The Administrative Appeals
1. Spokane I: The First Appeal
In December 1988, Citizens appealed Ecology's approval of the Spokane
incinerator to the EPA Administrator. Citizens argued that Ecology had
erred in failing to consider recycling as a best available control
technology. As a result, Citizens argued, Ecology planned to permit the
incinerator to discharge more regulated pollutants than necessary. Further,
Citizens challenged Ecology's failure to require "deNOx" control
technologies to seduce nitrogen oxide emissions from the incinerator.
On June 9, 1989, the Administrator issued an order denying review of
the Spokane permit. In re Spokane Regional Waste-to-Energy Applicant, PSD
Appeal No. 88-12 (EPA June 9, 1989) ("Spokane I"). The Administrator ruled
that Citizens had failed to meet its burden on administrative appeal. That
is, Citizens had failed to show Ecology had "committed clear error" in
refusing to consider recycling as a best available control technology. Id.
at 21. The Administrator also dismissed as moot Citizens' argument
concerning deNOx control technologies because Spokane agreed to install the
requisite technology. Id. at 23. The Administrator thus remanded the permit
to Ecology to set new pollutant levels recalculated for deNOx technologies.
Id. The Administrator "strictly limited" the scope of any future appeal to
those revised pollutant levels. Id. at 24.
2990 CITIZENS FOR CLEAN AIR v. EPA
2. Recycling as a New Source Performance Standard
A month prior to Spokane's 1987 permit application, EPA published
notice of proposed new rules for New Source Performance Standards for
municipal waste combustors ("MWCs") such as Spokane's. 52 Fed. Reg. 25,399
(1987). The notice mentioned recycling as a proposed New Source Performance
Standard. Id. On December 20, 1989, six months after the Administrator's
order denying Citizens' appeal of the Spokane incinerator permit and while
that permit was on remand to Ecology, EPA published the proposed New Source
Performance Standards. 54 Fed. Reg. 52,251 (1989). In its proposed rule,
EPA observed that as a matter of common sense recycling is an appropriate
technology for reduction of air pollution from incinerators. Id. at 52,281.
EPA also noted that it was "unable to reliably quantify the emission
reductions attributable to materials separation when an MWC is equipped with
highly efficient at-the-stack air pollution control devices." Id. The
Administrator approved the draft New Source Performance Standards, and
opened them for public comment. When Citizens petitioned for review in this
court, final approval of recycling as a New Source Performance Standard was
still pending.[See footnote 4]
3. Spokane II: The Second Appeal
In September 1989, after an additional public comments period, Ecology
issued revised final approval of Spokane's incinerator permit. Citizens
petitioned the Administrator for review of the revised permit. In its
petition, Citizens argued that the revised NOx emissions limit was still too
high
_______________
Footnote 4. Since submission of the case to this court, EPA has rejected
recycling as a New Source Performance Standard. See 56 Fed. Reg. 5,488,
5,496-98 (1991). Referring to the instant case, however, EPA noted that
"whether an emission reduction requirement based on source separation
[recycling] is for a specific incinerator project may continue to be raised
on a case-by-case basis in individual BACT [best available control
technologies] determinations." Id. at 5,496 n.4.
CITIZENS FOR CLEAN AIR v. EPA 2991
because it did not account for reductions that would result from "a more
vigorous waste reduction and recycling program. In support of its petition,
Citizens cited the draft New Source Performance Standard for recycling for
municipal incinerators recently approved by the Administrator. The petition
also included a study of Seattle's successful recycling program.
On January 2, 1990, the Administrator denied Citizens' petition. In re
Spokane Regional Waste-to-Energy Project, PSD Appeal No.89-4 (EPA Jan. 2,
1990) ("Spokane II"). The Administrator again ruled that Citizens had
failed to meet its burden on administrative appeal. Id. at 2-3. The
Administrator further held that Citizens had improperly tried to raise the
same recycling issue the Administrator had foreclosed in the prior denial.
Id. at 4. On March 8, 1990, Citizens petitioned this court for review of the
Administrator's Spokane I and Spokane II orders.
STANDARD OF REVIEW
The Administrative Procedure Act governs judicial review of EPA
decisions. Accordingly, we may set aside the decision permitting the
Spokane incinerator only if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5 U.S.C. Section
706(2)(A); accord Citizens Against the Refinery's Effects, Inc. v. United
States EPA, 643 F.2d 178, 181 (4th Cir. 1981); see also Northern Plains
Resource Council v. United States EPA, 645 F.2d 1349, 1358 (9th Cir. 1981)
("EPA is obligated to articulate a rational connection between the facts
found and the choice made") (quotation omitted). In reviewing the
Administrator's interpretation of the Clean Air Act, we "must reject
administrative constructions which are contrary to clear congressional
intent." Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984). If,
however, we determine that the Clean Air Act is "silent or ambiguous with
respect to the specific issue," we determine only whether the
Administrator's "answer is based
2992 CITIZENS FOR CLEAN AIR v. EPA
on a permissible construction of the statute." Id. at 843; see also Utility
Reform Project v. Bonneville Power Admin., 869 F.2d 437, 442 (9th Cir.
1989). Deference also guides our review of the Administrator's
interpretation of EPA regulations if the interpretation is not unreasonable.
See Lambert v. FDIC, 847 F.2d 604, 606 (9th Cir. 1988).
DISCUSSION
A. The Spokane I Order
[1] Citizens contends that the Administrator erred by holding Citizens
had failed to meet an "especially heavy" burden of providing "hard data" in
support of recycling as a best available control technology for the Spokane
incinerator. Spokane I at 13-14. Citizens argues that, by improperly
imposing this burden, the Administrator changed the rules of administrative
review without notice, prevented Citizens from complying with the new rules,
and shifted the burden of advancing new air pollution control technologies
from PSD applicants to public intervenors.
The PSD permit procedure imposes different burdens on different parties
at various stages of the process. Initially, the burden rests with the PSD
applicant to identify the best available control technology. Relying on EPA
"guidance" memoranda, the Administrator concluded that "the statutory
definition of BACT [best available control technology] imposes a
responsibility on the permit applicant to identify the particular
'available' technology that will produce the maximum degree of reduction of
each regulated pollutant to be emitted from the proposed facility." Spokane
I at 8 (emphasis omitted); see also 42 U.S.C. Section 7475(a)(3) (placing
responsibility on the applicant to demonstrate that emissions from the
proposed new source will not cause excessive air pollution). Specifically,
the applicant is expected to employ a "top-down" methodology to identify the
best available control technology. Spokane I at 9.
CITIZENS FOR CLEAN AIR v. EPA 2993
Under the top-down methodology, applicants must apply the best
available control technology unless they can demonstrate that the technology
is technically or economically infeasible. Id. The top-down approach places
the burden of proof on "'the applicant to justify why the proposed source is
unable to apply the best technology available.'" Id. (quoting EPA "guidance"
memorandum) (emphasis added). The burden of identifying and applying the
best available control technology thus lay with Spokane during the
proceedings before Ecology.
[2] Once the permitting process reaches the public comments stage,
"[a]ll persons, including [permit] applicants, who believe...the...tentative
decision to...prepare a draft permit is inappropriate, must raise all
reasonably ascertainable issues and submit all reasonably available
arguments supporting their position." 40 C.F.R. Section 124.13. The
permitting authority is then obligated to respond to "all significant
comments." Id. Section 124.17(a)(2). As the Administrator recognized in this
case, Spokane I at 12-13, "'comments must be significant enough to step over
a threshold requirement of materiality before any lack of agency response or
consideration becomes of concern. The comment cannot merely state that a
particular mistake was made...; it must show why the mistake was of possible
significance in the results.'" Vermont Yankee Nuclear Power Corp. v. NRDC,
435 U.S. 519, 553 (1978) (quoting Portland Cement Ass'n v. Ruckelshaus, 486
F.2d 375, 394 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974)) (emphasis
added).
[3] Upon initial approval of a permit, any person who filed comments
may petition the Administrator for review of the permit decision on any
ground, so long as it was raised to the extent required during the public
comment period. 40 C.F.R. Section 124.19(a). In petitioning the
Administrator for review of a PSD permit, the burden shifts from applicants
to petitioners such as Citizens. Under EPA regulations, in order to obtain
2994 CITIZENS FOR CLEAN AIR v. EPA
administrative review petitioners must show that approval of the permit was
based on:
(1) A finding of fact or conclusion of law which is clearly erroneous,
or
(2) An exercise of discretion or an important policy consideration
which the Administrator should, in his or her discretion, review.
Id. Petition for administrative review of a permit decision, then, is not a
matter of right. Indeed, as the Administrator emphasized, EPA has
determined that the "'power of review should be only sparingly exercised,'
and 'most permit conditions should be finally determined at the Regional
[State] level.'" Spokane I at 3 (quoting preamble to review regulation, 45
Fed. Reg. 33,412 (1980)).
[4] Once the case reaches this court, we apply the arbitrary or
capricious standard set forth above to the agency action approving the PSD
permit. Contrary to EPA's argument, we do not simply review whether it was
arbitrary or capricious for the Administrator to reject Citizens' claims
that Ecology clearly erred. Rather, we conduct a deferential review of the
entire agency action, including the adequacy of Ecology's response to
Citizens' comments. See 5 U.S.C. Section 704 ("A preliminary, procedural, or
intermediate agency action or ruling not directly reviewable is subject to
review on the review of the final agency action."); see also id. Sections
706 (providing for judicial review of "agency action"), 551(13) (defining 41
agency action" as including "the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure
to act"), 701 (b)(2) (incorporating section 551 definition of "agency
action" into APA judicial review provisions).
With these varying standards and levels of review in mind, the issue
ultimately presented to this court is whether EPA's
CITIZENS FOR CLEAN AIR v. EPA 2995
response to Citizens' comments concerning recycling was arbitrary or
capricious. We think this issue turns on whether the agency properly relied
on the "significant comment" threshold test set forth at 40 C.F.R. Section
124.17(a)(2) in refusing to consider recycling as a possible best available
control technology.
[5] In taking this approach, we reject Citizens' argument that, instead
of relying on the Section 124.17 threshold test, EPA imposed a new "heavy
burden" requiring Citizens to produce "hard data" concerning recycling
before EPA could be required to consider recycling as a possible best
available control technology. Citizens bases its argument here on the fact
that Ecology responded to Citizens' comments, and that Section 124.17 only
requires a response when comments are "significant." Citizens therefore
concludes that its comments must be significant, such that EPA must have
employed a different, new test in order to avoid further consideration of
recycling.
[6] We disagree. Citizens' argument fails to take into account that
the burden of proof at the permitting stage rested upon the permit
applicant, not EPA. So long as EPA declines to require a response from the
applicant, and otherwise does not substantively respond to a comment, we
surmise that EPA has not considered the comment to be significant. It is
this determination that we must review.[See footnote 5]
_______________
Footnote 5. "While we may not supply a reasoned basis for the agency's
action that the agency itself has not given, we will uphold a decision of
less than ideal clarity if the agency's path may reasonably be discerned."
Northern Plains Resource Council, 645 F.2d at 1358 (citations and quotation
omitted); accord California Energy Common v. Bonneville Power Admin., 909
F.2d 1298, 1314 (9th Cir. 1990), cert. denied, 111 S. Ct. 1682 (1991). As
will appear, we think the path we find the agency to have taken is
reasonably discernible, and so we proceed to review whether, in taking this
path, the agency has gone out of bounds.
2996 CITIZENS FOR CLEAN AIR v. EPA
1. Sufficiency of Citizens' Comments
[7] Anticipating our approach, Citizens contends that the Administrator
erred in holding that Citizens' comments on Spokane's PSD application were
not sufficiently significant to require Ecology either to request a response
from the permit applicant or otherwise to consider recycling as a possible
best available control technology. It is "incumbent upon intervenors who
wish to participate to structure their participation so that it is
meaningful, so that it alerts the agency to the intervenors' position and
contentions." Vermont Yankee, 435 U.S. at 553. Citizens contends that their
comments to Ecology about recycling met this standard.
[8] In considering Citizens' administrative petitions, the
Administrator noted that, because the permit applicant bears the burden of
identifying the best available control technology, the slightest suggestion
by an intervenor in the comments might compel applicants to undertake time-
consuming, costly studies. Spokane I at 12. Deploring this scenario, the
Administrator emphasized that applicants and agencies need respond in detail
only to "'significant comments.'" Id. (emphasis added by Administrator)
(quoting 40 C.F.R. Section 124.17(a)(2)). Citing the Vermont Yankee Court,
the Administrator noted that "petitioners' responsibility to present its
position and contentions effectively was especially heavy" when asking an
applicant or agency to "'embark upon an exploration of uncharted
territory.'" Id. at 13-14 (quoting Vermont Yankee, 435 U.S. at 553).
Finding that recycling as an air pollution control was such "uncharted
territory," the Administrator held that Citizens failed to meet its burden
to show Ecology clearly erred in failing to evaluate recycling in detail
despite Citizens' comments. We agree with the Administrator's reading of
the Vermont Yankee decision.
[9] In light of Citizens' comments and Vermont Yankee, EPA's decision
not to consider recycling as a possible best available control technology
was not arbitrary or capricious.
CITIZENS FOR CLEAN AIR v. EPA 2997
Citizens does not assert that at the time it originally filed its comments
with Ecology, hard data existed concerning the effects of fuel cleaning and
separation used in combination with state-of-the-art cleaning devices.
Rather, it is undisputed that no such hard data existed. In considering
Citizens' comments, Ecology stated that the technology needed further study
in order to quantify its benefits, and even after the Spokane PSD permit had
been issued, a 1989 EPA Municipal Waste Task Force Report concluded that
"data are currently inadequate to determine precisely the effect on air
emissions and ash of eliminating specific materials from the waste stream
prior to combustion." Citizens does not contest these statements.
[10] Although Citizens has structured its comments so as to be more
specific than were those in Vermont Yankee, Citizens offers no hard evidence
of the effectiveness of fuel cleaning and separation in combination with
scrubbers and baghouses. Nor does Citizens refer to analogous technology
that would quantifiably validate the effectiveness, or even the use, of fuel
cleaning and separation in combination with state-of-the-art technologies.
Instead, Citizens contends its comments are sufficient to provoke
consideration of recycling as a possible best available control technology
on the common sense argument of "burn less, pollute less."
[11] Taken by itself, "burn less, pollute less" is of course a common
sense approach. However, once the addition of state-of-the-art control
technologies are introduced into the equation, this common sense statement
can no longer stand on its own two feet. As the Administrator indicated,
because Spokane's proposed incinerator will incorporate state-of-the-art
pollution control technologies, recycling may not result in a "demonstrable
reduction in emissions of regulated pollutants." Spokane I at 22. Thus,
Citizens was required to introduce something more specific. In particular,
it appears EPA considered necessary some indication of what materials
recycling would remove from the waste stream, and what reg-
2998 CITIZENS FOR CLEAN AIR v. EPA
ulated air pollutants would thereby be further diminished after existing
control technologies have been taken into account. Here, Citizens did not
set forth with specificity, if at all, either issues or evidence in support
of its common sense argument.
[12] As the Administrator concluded, the three studies submitted by
Citizens are not relevant to the question whether fuel cleaning and
separation in combination with conventional, state-of-the-art pollution
control equipment is best available control technology for the Spokane
incinerator.[See footnote 6] Spokane I at 15-17. One of the studies
compared emissions from incinerators lacking air pollution controls to those
from the same uncontrolled incinerators with the addition of recycling. Id.
at 15. The Administrator reasoned that "it is impossible to conclude" from
this study whether recycling would have decreased emissions further had the
test incinerators also employed the state-of-the-art technologies proposed
for the Spokane incinerator. Id. at 15-16. Another study determined that
recycling was not the best available control technology for the facility in
San Marcos, California. Id. at 16-17. Thus, none of the studies supported
the proposition that a recycling requirement for Spokane's incinerator would
reduce emissions of regulated pollutants over and above the reductions
Spokane will achieve by installing the other technologies already required
by the PSD permit. Id. at 17. We find nothing arbitrary or capricious in
the Administrator's analysis of these studies.
_______________
Footnote 6. The three studies are "A Non-Incineration Alternative Approach
to Solid Waste Management Using Recycling Based Strategies for the Town of
Oyster Bay, New York," June 1988 ("Oyster Bay" study); Letter dated May 25,
1988, from David P. Howekamp, Director. Air Management Division, EPA Region
IX, to Larry Richardson, North County Resource Recovery Associates, with
attachments ("San Marcos" study); National Recovery Technologies, Inc.,
"Effects of MSW Preprocessing on Thermal Conversion of MSW in Mass Burn
Incineration," May 31, 1995 ("NRT" study).
CITIZENS FOR CLEAN AIR v. EPA 2999
In light of the Statutory requisite that the proposed technology be the best
available control technology, and in the absence of anything specific or
quantifiable in support of a position that common sense alone cannot
sustain, we conclude that EPA's decision not to consider recycling in
permitting the Spokane incinerator was not arbitrary or capricious.
2. Construction of the Statutory Term "Best Available
Control Technology"
[13] Citizens also contends that, in requiring it to demonstrate
quantitatively the effects of recycling in combination with pollution
control technology, the Administrator erred in construing the term
"available," as used in the statutory "best available phrase control
technology," to mean
quantifiably effective." Citizens points out that the Clean Water Act
requires new sources of pollution to employ the "best available demonstrated
control technology." 33 U.S.C. Section 1316(a)(1) (emphasis added).
Congress did not require "demonstrated" effectiveness under the Clean Air
Act, however. Instead, Citizens argues, a technology is "available" under
the Clean Air Act so long as it is not "purely theoretical or experimental."
See Portland Cement Ass'n, 486 F.2d at 391 (quotation omitted). The
Administrator erred, Citizens concludes, in denying Citizens' petition for
lack of data quantifying recycling as a best available control technology
for Spokane's incinerator. Obviously, Citizens argues, recycling is neither
purely theoretical nor experimental.
[14] Even if we were to agree that the Administrator erred in
construing the statutory term "available" to mean quantifiably effective,"
the error did not prejudice Citizens. As Citizens concedes, a technology's
effectiveness must be considered at some point to determine whether it is
the "best" technology. The Administrator's rationale applies with equal
force to a "best" as well as to an "available" determination. As the
Administrator observed, "without the requisite knowledge about the
technology's effects on emissions, the technol-
3000 CITIZENS FOR CLEAN AIR v. EPA
ogy also cannot be regarded as the 'best' technology." Spokane I at 18.
Indeed, and as the Administrator further noted, the top-down ranking
methodology for best available control technologies requires some kind of
quantification of effectiveness in order to rank technologies. Spokane I at
9-10. Accordingly, we find no error in the Administrator's application of
the term "best"; we have no occasion to rule on EPA's construction of the
term "available."
3. The New Source Performance Standard for Recycling
[15] Citizens argues finally that EPA itself supplied whatever
substantiation Citizens' comments may have lacked when the Administrator
approved the draft New Source Performance Standard requiring recycling for
municipal incinerators such as Spokane's. In approving the new recycling
standard, Citizens points out, the Administrator relied on both the "NRT"
study[See footnote 7] and the same common sense inferences rejected by the
Administrator in denying Citizens' first petition. If the NRT study and
common sense suffice for the proposal of nationwide, mandatory standards,
Citizens argues, they ought to suffice to require Ecology and EPA to
consider recycling as a possible best available control technology.
In the order denying Citizens' second petition, the Administrator
explained three reasons for refusing to consider the proposed new recycling
standard in support of Citizens' petition. Spokane II at 5 n.3. First, the
new standard was still in draft form, susceptible to public comment and
change. Id. Second, if finally adopted, the standard would apply to
Spokane's incinerator in all events. Id.[See footnote 8] Third, the evidence
supporting the new standard did not appear in the record for Spokane's PSD
permit either before Ecology or before the Administrator in the first
petition. Id. In the "interest of
_______________
Footnote 7. See supra note 6.
Footnote 8. After this case was submitted to this court, EPA in fact
rejected the recycling New Source Performance Standard. See supra note 4.
CITIZENS FOR CLEAN AIR v. EPA 3001
repose," therefore, the Administrator declined to review the evidence at
that stage. Id.
Citizens deftly attempts to undermine the Administrator's rationale.
If the issue is persuasiveness of the evidence to EPA itself, Citizens
argues, lack of final approval does not weaken the Administrator's
imprimatur on the evidence shown by his initial approval of the draft
recycling standard. Citizens adduced the exact same evidence in its
comments as EPA considered in proposing the new recycling standard; i.e.,
the NRT study and "common sense." The NRT study and common sense arguments
were on the record both before Ecology during the permit process and before
the Administrator in Citizens' first petition. Thus, Citizens concludes,
the Administrator acted arbitrarily and capriciously by rejecting, on the
one hand, Citizens' recycling evidence in support of its petition and, on
the other hand, adopting the exact same evidence in support of the draft
recycling standard for all new municipal incinerators.
[16] Data supporting a New Source Performance Standard, however, must
necessarily be more generated than data supporting a best available control
technology determination for a particular incinerator in a particular place.
Indeed, we have previously distinguished New Source Performance Standard or
"NSPS" determinations from those made under the PSD program. In Northern
Plains Resource Council, we explained:
While the NSPS program and the PSD are both interrelated parts of
a comprehensive federal legislative effort to protect and enhance this
nation's air quality, the two programs play different roles in
achieving that broad general goal....
The focus of the NSPS program...is upon the "affected facility"
component in a stationary source, i.e. the particular apparatus to
which a standard is applied. The NSPS program is therefore equipment
3002 CITIZENS FOR CLEAN AIR v. EPA
oriented. On the other hand, the PSD program covers the whole
stationary source, and focuses on where the plant will be located and
its potential effect on its environs. The PSD program is therefore
site oriented.
645 F.2d at 1355-56 (emphasis in original) (citation omitted). We therefore
concluded that definitions of statutory terms are not necessarily
transferable between the PSD and NSPS programs. Id. at 1356. Likewise, the
data required for adoption of an "equipment oriented" New Source Performance
Standard may fall far short of the data required for the "site oriented"
best available control technology determination under the PSD program.
Given the distinction between the two programs, the Administrator did not
act arbitrarily and capriciously in rejecting Citizens' petition under the
PSD program based on data valid for the NSPS program.
B. The Spokane II Order
Citizens also argues that the Administrator erred in refusing to
consider Citizens' second petition arguing for recycling as a best available
control technology in conjunction with deNOx technology. Citizens points
out again that the Administrator's approval of recycling as a draft New
Source Performance Standard bolstered their second petition. Moreover,
Citizens argues, the Administrator erred in refusing to reconsider recycling
in the second petition "in the interest of repose." Congress intended
applicants to complete the entire PSD permit process, subject to revision at
any time, before commencing construction, Citizens argues. The
Administrator's concern for "repose," Citizens argues, thus thwarts
congressional intent that new sources of air pollution incorporate up-to-
the-last-minute technologies for emission reduction.
[17] Citizens correctly describes congressional intent; the
Administrator should not have cited "repose" as a rationale for denying
Citizens' second petition. See 42 U.S.C.
CITIZENS FOR CLEAN AIR v. EPA 3003
Section 7475(a)(1); 40 C.F.R. Section 124.19(f).[See footnote 9] However,
because we reject Citizens' arguments concerning its first petition, we
reject Citizens' objections to the Administrator's Spokane 11 order as well.
Citizens offered nothing more specific on remand than it did during the
initial comment period. Certainly the proposed recycling standard offers no
additional information supporting Citizens' position. As EPA noted in
proposing the standard, the agency was "unable to reliably quantify the
emission reductions attributable to materials separation." 54 Fed. Reg.
52,251 (1989). The Administrator therefore did not act arbitrarily and
capriciously in declining to reconsider recycling as a best available
control technology upon Citizens' second petition.
C. Attorney Fees
Citizens requests an award of attorney fees under the Equal Access to
Justice Act, 28 U.S.C. Section 2412(d). We deny the request because we
conclude that Citizens does not prevail on this petition for review.
CONCLUSION
From a broad policy perspective, Citizens makes a good case for
consideration of recycling as a best available control technology in PSD
permit decisions. Our opinion today by no means weakens that case. Indeed,
in denying Citizens' petition, the Administrator affirmed the policy of
recycling. "I consider recycling," the Administrator declared, "an
essential part of intelligent planning for the solid waste disposal predic-
_______________
Footnote 9. Section 7475(a) prohibits construction of any facility,
including Spokane's incinerator, until a permit has issued which has been
subject to public comment on alternatives and to agency review. Regulation
124.19(f) defines final agency action as exhaustion of all administrative
remedies, including a petition for EPA administrative review. Citizens is
therefore correct that an interest in repose would not alone justify the
Administrator's refusal to grant a petition for review when, on remand,
additional public comments were properly solicited and made.
3004 CITIZENS FOR CLEAN AIR v. EPA
ament that more and more of our Nation's cities are facing." Spokane I at 4.
Citizens' petition for review, however, relies on unpersuasive criticisms of
the Administrator's detailed orders denying Citizens' administrative
petitions. The petition for judicial review is therefore
DENIED.
PRINTED FOR
ADMINISTRATIVE OFFICE-U.S. COURTS
BY BARCLAYS / ELECTROGRAPHIC-SAN FRANCISCO-(415) 588-1155
__________________
The summary, which does not constitute a part of the opinion of the court,
is copyrighted
1992 by Barclays Law Publishers.
BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
|
| | ) | | |
In the Matter of: | | ) | | |
| | ) | | |
Brooklyn, Navy Yard Resource | | ) | | PSD Appeal No. 88-10 |
Recovery Facility | | ) | | (consolidating Appeal Nos. |
| | ) | | 88-10, 90-10, 90-11, 90-12) |
Applicant | | ) | | |
| ) |
REMAND ORDER
On September 7, 1990, EPA Region II issued to SES Brooklyn. Company
(SES) a final prevention of significant deterioration (PSD) permit for the
construction and operation of a new 3000-tons-per-day municipal waste
incinerator. The project will be located at the Brooklyn Navy Yard in
Brooklyn, New York. Seven petitions for review have been filed challenging
the permit. The permit has been amended three times, and some petitions
challenge earlier versions of the permit, while others challenge the latest
version. For the reasons stated below, review of all but one of these
petitions is denied. The remaining petition has merit, however.
Accordingly, the permit is remanded to Region II for the very limited
purpose of considering the viability of a reasonable materials separation
program for nitrogen-containing materials.
I. BACKGROUND
The final permit was first issued on August 26, 1988. Dr. Bernard
Fryshman, Ph.D. and the Environmental Defense Fund (EDF) both petitioned for
review of the Region's decision. On September 28, 1988, the Region formally
amended the best available control technology (BACT) determinations in the
permit for sulfuric acid mist, sulfur dioxide and hydrogen fluorides. The
administrative appeal period, which had begun on August 27, 1988 for appeals
relating to the original version of the final permit, was extended another
30 days for appeals relating to the amendments. Dr. Fryshman filed a second
petition in response to these permit amendments. Later, on October 11,
1989, the Region issued a revised draft permit with amendments to the NOx
and PM-10 limitations. The Region received public comment on these
amendments between October 23, 1989 and February 22, 1990 and held a public
hearing on them on February 15, 1990. In its public notice announcing the
comment period and the public hearing, the Region made it clear that the
comment period and public hearing were limited to comments on the new
limitations for NOx and PM-10. After the public comment period, the Region
changed the control technology for Nox and the limitations for NOx, ammonia
slip, and sulfur dioxide, without subjecting these changes to public
comment, and on September 7, 1990, the Region issued a modified final permit
incorporating these latest changes. Dr. Fryshman, the New York Public
Interest Research Group (NYPIRG), and Samuel Bishop all filed petitions for
review challenging the September 7th issuance of the final permit.
3
II. DISCUSSION
Under the rules governing this proceeding, there is no appeal as of
right from the permit decision. Ordinarily, a petition for review of a PSD
permit determination is not granted unless it is based on a clearly
erroneous finding of fact or conclusion of law, or involves an important
matter of policy or exercise of discretion that warrants review. The
preamble to the regulations states that "this power of review should be only
sparingly exercised," and that "most permit conditions should be finally
determined at the Regional level * * *." 45 Fed. Reg. 33,412 (May 19,
1980). The burden of demonstrating that the permit conditions should be
reviewed is therefore on the petitioner.
A. Environmental Defense Fund's Petition
Region II issued a final permit to SES on August 26, 1988. Section
124.19 of the Consolidated Rules provides that a petition for review
must be filed within 30 days after a PSD final permit decision.
40 CFR Section 124.19 (1990). Section 124.20, governing computation
of time, provides that "[a]ny time period scheduled to begin on
the occurrence of an act or event shall begin on the day after the
act or event." 40 CFR Section 124.20 (1990). Section 124.20 also
provides that "[w]henever a party or interested person has the right
or is required to act within a prescribed period after the service
of notice or other paper upon him or her by mail, 3 days shall be
added to the prescribed time." Id. Thus, the period for filing a
petition challenging the permit began on August 27, 1988, and ended
on September 28, 1988 (33 days). The Environmental Defense Fund
(EDF) filed its Petition for Review on September 30, 1988, two days
late. Accordingly, the petition is untimely, and review is denied.
B. Dr. Bernard Fryshman's Petitions
I have carefully reviewed Dr. Fryshman's three petitions and the
Region's responses to them.[See footnote 1/] I am satisfied that the Region
has given the petitions due consideration. There is nothing in those
petitions that leads me to believe that the Region has committed clear error
in its Brooklyn Navy Yard permit determination. Nor is there anything to
suggest that the
_______________
Footnote 1/. Dr. Fryshman sent a letter to this office dated February 6,
1991, complaining that EPA Region II had not provided a meaningful
opportunity for public input during the permitting process for the proposed
Brooklyn Navy Yard facility. In his February 6th letter, Dr. Fryshman
presents his complaint about restrictions on public input as an another
petition for review. He states:
In addition to the factual items placed before you in my earlier briefs
* * *, there is now an important POLICY CONSIDERATION which must be
brought before the Administrator for review: MAY REGION II SO RESTRICT
PUBLIC INPUT AS TO DENY CONGRESSIONAL INTENT REGARDING FULL
PARTICIPATION BY CITIZENS?.
The deadline for filing petitions for review (September 28, 1988) passed
well before Dr. Fryshman filed this latest petition. Accordingly, the
petition is untimely, and review is denied. Even it the petition had been
filed in a timely fashion, however, I would have denied review. By all
accounts, Region II provided Dr. Fryshman with every opportunity to
participate that he was entitled to under the rules. Dr. Fryshman's real
quarrel is with the rules governing public participation, not with the way
Region II applied those rules. Section 124.19, which governs this appeal,
authorizes me to review contested permit conditions, and is not intended to
provide a forum for entertaining challenges to the validity of the
procedural rules governing the permitting process.
Region's decision involves an exercise of discretion or a public policy
issue that should be reviewed as a discretionary matter. Review of the
issues raised in Dr. Fryshman's petitions is therefore denied.
C. Samuel Bishop's Petition
As discussed above, the most recent public comment period in the
Brooklyn Navy Yard permitting process was limited in scope to changes in the
permit limitations for PM-10 and NOx. After that comment period, the Region
made several new changes in the permit relating to the NOx control
technology and to the permit limitations for Nox, ammonia slip, and sulfur
dioxide.
Accordingly, with respect to the petitions for review filed after
September 7, 1990, this office will review only those issues relating
to the changes that prompted the opening of the public comment period
(i.e., changes in the NOx and PM-10 limitations) or the changes
that were made after the public comment period ended (i.e., changes
in the control technology for NOx and the new limitations for NOx,
ammonia slip, and sulfur dioxide). The issues in Mr. Bishop's petition
relate to the air quality model used to determine how emissions
from the proposed facility will affect air quality in the surrounding
area. These air quality modeling issues are distinct from the control
technology issues that are subject to review in this phase of the
permitting process. See World Color Press, Inc., PSD Appeal No.
88-4, at 4 (Dec. 13, 1990) ("[A] PSD permit applicant must demonstrate
that emissions from the operation of the facility will not cause
or contribute to air pollution in excess of the national ambient
air quality standards ("NAAQS"). 42 U.S.C. Section 7475(a)(3). This
air quality requirement is independent from the technology (i.e.,
BACT) requirement.") (footnote omitted). Mr. Bishop's petition says
absolutely nothing about the best available technology for controlling
emissions of NOx and PM-10. The air quality modeling issues raised
by Mr. Bishop were reasonably ascertainable in 1988 when the final
permit for Brooklyn Navy Yard was first issued and should have been
raised then. Mr. Bishop is precluded from raising them now.
Even if Mr. Bishop could raise these modeling issues now, they would
not warrant review. After careful and thorough consideration of Mr.
Bishop's arguments, I am not convinced that the Region's modeling
determinations are clearly erroneous. Nothing in Mr. Bishop's two briefs
persuades me that the modeling used in this case will significantly
underpredict the impact that emissions from the proposed facility will have
on the affected area.
D. NYPIRG's Petition
NYPIRG believes that the best available control technology (BACT) for
nitrogen oxide emissions is a combination of the combustion and add-on
control technologies prescribed in the final permit plus materials
separation (i.e., removal of nitrogen-containing materials from the waste
stream), which was not prescribed in the permit. NYPIRG contends that SES's
BACT
7
analysis was defective because it did not include consideration of materials
separation. For the reasons set out below, I agree. The viability of a
materials separation program targeted at nitrogen containing wastes should
be considered by the permitting authority in the BACT analysis for the
Brooklyn Navy Yard facility.
1. Background
"Best available control technology" or BACT is defined in the
regulations as an "emissions limitation" which reflects the "maximum degree
of reduction" of "each pollutant subject to regulation under [the] Act,"
which the Administrator determines is "achievable" after "taking into
account energy, environmental, and economic impacts and other costs." Clean
Air Act section 169(3), 42 U.S.C. Section 7479(3); 40 CFR Section
52.21(b)(12) (1990).[See footnote 2/]
_______________
Footnote 2/. The full regulatory definition of "best available control
technology" is as follows:
Best available control technology means an emissions limitation
(including a visible emission standard) based on the maximum degree
of reduction for each pollutant subject to regulation under (the)
Act which would be emitted from any proposed major stationary source
or major modification which the Administrator, on a case-by-case
basis, taking into account energy, environmental, and economic impacts
and other costs, determines is achievable for such source or modification
through application of production processes or available methods,
systems, and techniques, including fuel cleaning or treatment or
innovative fuel combustion techniques for control of such pollutant.
In no event shall application of best available control technology
result in emissions of any pollutant which would exceed the emissions
allowed by any applicable standard under 40 CFR parts 60 and 61.
If the Administrator determines that technological or economic limitations
on the application of measurement Achievement of an emission limitation
may be secured "through application of production processes or available
methods, systems, and techniques, including fuel cleaning or treatment
or innovative fuel combustion techniques for control of such pollutant."
Id. The term "emissions limitation" is defined in the Clean Air
Act as a requirement established by the State or the Administrator
which limits the quantity, rate, or concentration of emissions of
air pollutants on a continuous basis" including any requirement
relating to the operation or maintenance of a source to assure continuous
emission reduction.
CAA Section 302, 42 U.S.C. Section 7602. The regulatory BACT definition
provides that
[i]f the Administrator determines that technological or economic
limitations on the application of measurement methodology to a
particular emissions unit would make the imposition of an emissions
standard infeasible, a design, equipment, work practice, operational
standard, or combination thereof, may be prescribed instead to satisfy
the requirement for the application of the best available control
technology.
40 CFR Section 52.21(b)(12) (1990).
_______________
Footnote 2/ (...continued)
methodology to a particular emissions unit would make the imposition of
an emissions standard infeasible, a design, equipment, work practice,
operational standard, or combination thereof, may be prescribed instead
to satisfy the requirement for the application of best available
control technology. Such technology shall, to the degree possible, set
forth the emissions reduction achievable by implementation of such
design, equipment, work practice or operation, and shall provide for
compliance by means which achieve equivalent results.
40 CFR Section 52.21(b)(12) (1990).
In this case, NYPIRG contends that SES's BACT analysis should have
included consideration of a requirement to remove nitrogen-containing waste
from the waste stream combined with the combustion and add-on controls
prescribed in the permit. NYPIRG argues that this combination is the most
stringent available technology. Even if it is not the most stringent
technology, NYPIRG believes it is nevertheless the "best" technology because
of the environmental, energy, and economic benefits it would produce.
The issue of whether materials separation should be considered
in a BACT analysis was first addressed in Spokane Regional Waste-to-Energy
Project, PSD Appeal No. 88-2 (June 9, 1989). In Spokane, the petitioners
requested review of a PSD permit for construction of an 800-ton-per-day
municipal waste incinerator at an existing landfill west of the
City of Spokane. The permit determination was made by the Washington
State Department of Ecology ("Ecology"). Petitioners contended that
Ecology had erred in its BACT determination for control of heavy
metal and toxic pollutant emissions by not giving in-depth consideration
to "fuel cleaning and separation" in combination with the conventional,
state-of-the-art pollution control equipment already required by
the Spokane permit. I rejected this contention, pointing out that
petitioners were unable to provide evidence that the addition of
fuel cleaning and separation had resulted in better emissions reductions
than those achieved by the highly effective conventional equipment
and operating practices already required by the Spokane permit.
Id. at 14-15. I stated that, while much was known about how and
what to recycle to achieve waste reduction, no hard data were available
to judge whether supplementing conventional, state-of-the-art pollution
control equipment such as baghouses and scrubbers with fuel cleaning
and separation would cause reductions or increases of regulated
pollutant emissions. Id. at 14. I observed that a technology is
obviously not available in any meaningful sense of knowledge about
its effect on emissions, in the particular configuration in which
it would be employed, is so incomplete as to be unusable. Id. at
17. I held, therefore, that petitioners had not shown that fuel
cleaning and separation, in combination with conventional, state-of-the-art
pollution control equipment, constitute available technologies for
purposes of the BACT determination. In conclusion, I suggested that,
as more communities adopt recycling in conjunction with incineration,
more information about this combination of technologies will become
available, and that at some point, future permit applicants may
be required to include consideration of recycling in their BACT
determinations. Id. at 22. That point has now arrived, because available
information indicates that reducing certain constituents of the
waste stream can reduce pollutant emissions.
On December 20, 1989, after the Spokane decision, the Agency published
a proposed rule setting new source performance standards for MWCs.[See
footnote 3/] In the proposed rule, the Agency proposed a materials
separation requirement as a component of "best demonstrated technology"
for MWCs. See 54 Fed. Reg. 52251 (Dec. 20, 1989). The proposed standards
would have required all MWCs to reduce the amount of solid waste
to be processed by at least 25% by removing from the waste stream
the following types of waste: paper and paperboard; ferrous metals;
nonferrous metals; glass; plastic; household batteries; and yard
wastes. Id. at 52254. The proposed standards also would have prohibited
MWCs from burning household batteries and lead-acid vehicle batteries
weighing more than 11 pounds. Id. at 52254-55. These materials separation
requirements were to be satisfied by on-site separation, off-site
community source reduction or material
_______________
Footnote 3/. New source performance standards are promulgated in accordance
with Section 111 of the Act, which authorizes the Administrator to identify
any category of sources that "causes, or contributes significantly to, air
pollution which may reasonably be anticipated to endanger public health or
welfare." CAA Section 111(b)(1)(A), 42 U.S.C. Section 7411(b)(1)(A). Once
this category has been identified, the Administrator must then set emissions
standards for new facilities falling within the identified category. CAA
Section 111(b)(1)(B), 42 U.S.C. Section 7411(b)(1)(B). The standards must
reflect the "degree of emission limitation achievable through the
application of the best system of emission reduction which (taking into
account the cost of achieving such reduction and any nonair quality health
and environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated (best demonstrated technology]."
CAA Section 111(a)(1), 42 U.S.C. Section 7411(a)(1). The "best demonstrated
technology" in a new source performance standard for a given pollutant is
not necessarily BACT for that pollutant. But BACT must always be at least
as effective as the technology required by the new source performance
standard. See CAA Section 169(3), 42 U.S.C. Section 7479.
separation (recycling), or a combination of the two. The Agency
explained that materials separation, used in conjunction with good
combustion practices, and add-on controls, will result in further
reductions of emissions from MWC'S. It is simply common sense, and
the Agency's expectation, that reductions in the amount of pollution
generating materials combusted in an MWC will reduce the amount
of pollutants in its air emissions.
Id. at 52281. The Agency noted, however, that while
[t]he proposed requirements for materials separation would reduce
overall MWC emissions the amount of emissions reduction cannot be
accurately predicted since there are little data relating materials
separation to MWC emissions when materials separation occurs in
conjunction with at-the-stack air pollution control.
Id. at 52257.
When EPA issued final source performance standards for MWC's,
it declined at that time to require source separation on a national
basis, and did not include the proposed materials separation requirements
in the final rule. See 56 Fed. Reg. 5496 (February 11, 1991). The
Agency had concluded that materials separation, in conjunction with
conventional emissions control technologies, was not the best demonstrated
technology for MWCs as a source category. In reaching this conclusion,
EPA did not alter its findings in the proposed rule regarding the
potential for reductions in MWC emissions through the use of source
separation. Rather, the Agency relied primarily on uncertainty as
to whether energy, economic, and nonair quality environmental impacts
would result in a net benefit on a national basis. See id. at 5496-97.
Instead of adopting a uniform nationwide rule, EPA decided to address
the source separation issue through the PSD process. Thus, EPA stated
in the preamble to the final NSPS that "[t]he issue whether an emission
reduction requirement based on a source separation is appropriate
for a specific incinerator project may continue to be raised on
a case-by- case basis in individual BACT determinations under CAA
section 169(3)." Id. at 5496 n.4.
Consistent with previous determinations, the threshold question
in this case is whether there is sufficient indication that a separation
program would reduce emissions beyond the levels achieved by the
conventional control technologies already included in the permit.
See Spokane discussion, supra. Here, the record indicates that the
types of materials separation programs being proposed by the petitioner
might very well bring about some reduction in NOx emissions. First,
despite its failure to consider source separation as a full-fledged
component of the BACT determination for NOx, as part of its BACT
determination Region II did include in the permit certain materials
separation requirements that would apply if emission limits for
NOx, lead, and other pollutants were exceeded. See 1990 Permit Modification,
Attachment II, at 5. This determination shows that the permitting
authority implicitly agrees that certain separation programs are
likely to reduce NOx emissions. In addition, the Hahn study cited
by the petitioner appears to confirm that there is a relationship
between the amount of nitrogen-containing waste going into an incinerator
and the amount of nitrogen oxide emissions coming out of it. (NYPIRG
Petition, Appendix 5).[See footnote 4/]
Based on the record of this case, I have concluded that Region II's
failure to consider the viability of various measures presented by the
petitioner as a means to reduce NOx emissions from the Brooklyn facility is
inconsistent with the case-by-case approach to source separation adopted by
the Agency in the final NSPS for incinerators. Therefore, the permit is
remanded for such consideration. In deciding to remand this matter,
however, I take great caution to note the limited nature of the remand and
the fundamental difference which exists between the kind of materials
separation program petitioner seeks in this case -- a program targeted at
nitrogen-containing waste -- and the more general new source performance
standards. Accordingly, on remand, the inquiry should be strictly limited
to measures that might reduce the NOx emissions from this facility, and
should not extend to a more general analysis of materials separation
programs not presented by the petitioner.[See footnote 5/] This is not
meant
_______________
Footnote 4/. It is also noteworthy, with respect to emissions of lead, that
Region II did include in its BACT determination an emission control
requirement that motor vehicle batteries be separated from the waste prior
to incineration. See 1990 Permit Modification, Attachment II, at 4; see
also 1988 Permit, Attachment IV at 22; NYPIRG Petition, Attachment 4, at 9.
Footnote 5/. Of course, consistent with my decision in North County Resource
Recovery Associates, PSD Appeal No. 86-2 (Remand order June 3, 1986),
consideration of source separation measures for the purpose of reducing
NOx emissions should include the collateral impacts of such measures
on emissions of other to suggest, however, that future permit applications
need not consider potentially viable separation programs during
the course of a BACT analysis just as any other available control
method or practice should be considered in such an analysis.
Although Region II must consider source separation as part of its BACT
determination for NOx, it does not follow that the Region must ultimately
require source separation in this case. BACT requires the "maximum degree
of reduction of each pollutant . . . through application of production
processes and available methods, systems and techniques, including fuel
cleaning, clean fuels, or treatment or innovative fuel combustion
techniques." 42 U.S.C. Section 7479(3); see also 40 CFR Section
52.21(b)(12) (1990). In conducting the case-by-case BACT analysis required
under the Act, the permitting authority shall take into account "energy,
environmental and economic impacts and other costs" in determining the
maximum reduction in emissions that is achievable for a particular facility.
Thus, even if the methods proposed by petitioner can reduce NOx emissions,
it does not mean that these requirements must be imposed as BACT in this
case. Rather,
_______________
Footnote 5/ ( ... continued)
pollutants. Normally, such a North County inquiry would be limited to
consideration of impacts on emissions of pollutants that are unregulated for
purposes of the PSD program, because the BACT determination for each other
regulated pollutant would directly consider the effects of the BACT
determination for NOx. Due to the posture of this case, however, further
plenary consideration of BACT for regulated pollutants other than NOx is
foreclosed. Accordingly, in considering revisions to the BACT determination
for NOx, Region II should evaluate the impacts of source separation measures
directed to NOx on emissions of other regulated pollutants as well.
consideration of energy, environmental and economic factors may dictate a
different result. As noted in the final rule establishing NSPS limits for
incinerators, the viability of a particular separation program is dependent
on a number of critical factors. Also as noted in the final rule, the
critical factors vary significantly from location to location. 516 Fed. Reg.
at 5497.
As the petitioner points out, there are a wide variety of wastes that
contain some nitrogen. Some of these are more susceptible than others to
cost-effective separation from the wastestream prior to incineration. There
need not be a consideration of every detail of every conceivable separation
and collection program for every individual nitrogen-containing component of
the waste stream for the BACT analysis requirements to be satisfied.
Rather, on remand the inquiry should look at readily discernible components
of the waste stream that contain nitrogen and that, if incinerated, may
contribute to NOx emissions -- e.g. yard waste -- and examine realistic
separation programs to determine their viability in this locale. It may
well be that the practical difficulties and the costs associated with
implementing a separation program for nitrogen-containing waste in the New
York City area would lead the Region to conclude that these programs do not
constitute BACT when the cost and other environmental impacts are
considered.[See footnote 6/]
_______________
Footnote 6/. Some of the needed analysis may have already been undertaken
by New York City when it developed its solid waste recycling SES
argues that NYPIRG's proposal would require SES to redefine the
purpose of its proposed facility:
[T]he Agency's own figures (54 Fed. Reg. 52,278) show that
approximately 80 percent by weight of all MSW is made up of the paper
and paperboard, yard wastes, food wastes, rubber, textiles and wood
that NYPIRG proposes to have removed from the waste stream going to
municipal waste combustors. Consequently, in the guise of a BACT
review, NYPIRG would seek to compel the removal of more than three
times as much material as the overall 25 percent reduction that [was
proposed for] the NSPS rules. In essence, under NYPIRG's fuel cleaning
proposal, the only things that could be burned at the BNYRRP would be
cans, bottles and plastics and all three of those types of MSW will be
subject to possible source separation under Local Law 19. The BNYRRP
cannot be redefined into a composting heap the size of the Fresh Kills
landfill in the guise of a BACT review.
(SES Memorandum in opposition to Petitions for Review, at 31.) NYPIRG
contends that it is merely asking SES to engage in "fuel cleaning, " with
municipal solid waste as the fuel and nitrogen-containing items as the
pollution-causing impurity to be cleaned out of the fuel. "Fuel cleaning"
is one of the control technologies specifically mentioned in the definition
of BACT. CAA Section 169(3), 40 CFR Section 52.21(b)(12).
I do not construe NYPIRG's petition as seeking a 100 percent removal of
nitrogen-containing wastes. See NYPIRG Supplemental
_______________
Footnote 6/ (...continued)
program under Local Law 19. I encourage Region II to rely upon that program
(and any related documents that may be available) as appropriate for the
purposes of identifying available methods and levels of separation, and of
identifying corresponding energy, environmental, an economic impacts. In
addition, the Region may give appropriate weight to the experiences,
findings and conclusions of the city in conducting the BACT analysis. Of
course the Region may not simply assume that any prior analyses are adequate
for BACT purposes, and must exercise independent judgment in making its own
determinations.
Comments, Feb. 4, 1991, at 7. In any event, NYPIRG now specifically concedes
that it is appropriate for the permitting authority to determine
an appropriate level of separation, if any, considering costs and
other relevant factors. See NYPIRG Petition at 30. This is consistent
with the normal conduct of a BACT analysis. Accordingly, I do not
read NYPIRG's petition as seeking to redefine the source, nor will
consideration of source separation render the facility nonviable.
Consequently, I agree with NYPIRG that source separation would constitute
fuel cleaning or treatment within the meaning of section 169(3)
of the Act and the PSD regulations. On remand the potential separation
program should be included as part of the BACT analysis. In this
case, I consider the relevant cost criteria to include generally
the factors considered by EPA in the development of the NSPS for
municipal waste combustors. Among these are the cost of a separate
collection program, the cost of trucks, worker wage rates, citizen
participation rates, and other factors that affect the overall cost-
effectiveness of separate collection. Such other costs would include
materials processing costs, including materials recovery facilities
or centralized composting programs and any administrative costs
of such a program. On the other side of the ledger, the permitting
authority should consider the avoided disposal Costs, and costs
of avoided landfill disposal from any service area expansion. Also
included would be the revenue from any projected sales of recovered
materials, and the avoided cost of regular trash collection that
may result from a separate collection program. Other benefits could
include any reduction in emissions from avoided landfill emissions
for materials (from an expanded service area) that would otherwise
have been landfilled. See generally Background Information Document,
EPA 450/3-90-021, "Municipal Waste Combustion: Background Information
For Materials Separation" (January 1991).
As noted above, the regulatory definition of BACT provides that
work practice standards and the like may be employed to the extent
that technological or economic limitations on the use of measurement
methodologies would make an emissions standard infeasible. It is
common for PSD permits to include a combination of emissions standards
and work practice standards in the emission limitation for a given
pollutant. This has been done by Region II in this permit, for example,
by specifying an emission limit for lead to be met through the use
of a baghouse, as well as a requirement for separation of motor
vehicle batteries from the waste stream prior to combustion. See
supra note 4. In the case of NOx, while it appears that a program
of source separation may well result in some reduction in NOx emissions,
it also appears from the record that the amount of such reductions
cannot be accurately predicted. Consequently, if, on remand, Region
II determines that some program of source separation should be included
in the BACT determination for NOx, it would be appropriate to include
that requirement in a manner consistent with other similar requirements.[See
footnote 7/]
III. CONCLUSION
I have considered the seven petitions for review that have been filed
in this proceeding. EDF's petition and one of Dr. Fryshman's petition were
not filed within the applicable appeal periods. Mr. Bishop's petition and
Mr. Fryshman's other three petitions have failed to persuade me that the
Regional Administrator was clearly erroneous in issuing the final permit or
that his decision involves an exercise of discretion or an important policy
issue that should be reviewed as a discretionary matter. Accordingly,
review of these six petitions is hereby
_______________
Footnote 7/. As indicated above, my decision to remand this permit for
consideration of source separation for NOx control is not intended to result
in any reconfiguration of the Brooklyn facility or significant change in its
planned usage. Controversies may remain in quantifying the efficacy of
source separation as a means of reducing emissions of air pollutants from
MWCs on a per-ton-burned basis. It should be noted, however, that
consideration of source separation by those planning to construct MWCs in
the future -- as part of a BACT analysis or otherwise -- may lead them to
conclude that the best course would be to plan for construction of a smaller
facility or to expand the MWC service area beyond what it might have been in
the absence of source separation. To the extent that municipalities reduce
the aggregate amount of waste incineration by a shift in solid waste
strategies towards source separation and recycling, it is simply common
sense that there will be a corresponding reduction in the aggregate amount
of air pollution emitted by MWCs as a whole. See 54 Fed. Reg. 52281. These
results would not be compelled by the BACT requirement. Should they occur,
however, such results would certainly be consistent with the air quality
planning and pollution prevention purposes of the PSD program: minimizing
emissions from individual new sources so as to conserve clean air resources
and maximize opportunities for future economic growth. See Clean Air Act
section 160(1), (3) and (5), 42 U.S.C. 7470(1), (3) and (5).
denied. However, NYPIRG's petition does raise an issue worthy of
consideration in the BACT analysis. Accordingly, I am remanding
this permit to Region II for the very limited purpose of considering
the viability of reasonably available material separation programs
to reduce the NOx emissions from the Brooklyn facility.
So ordered.
______________________________
WILLIAM K. REILLY
Dated: February 28, 1992
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Remand Order in the
matter of Brooklyn Navy Yard Resource Recovery Facility, PSD Appeal Nos. 88-
10, 90-10, 90-11, 90-12, were sent to the following persons in the manner
indicated.
First Class Mail,
Postage Prepaid:
Roger Anderson
Wheelabrator Technologies, Inc.
Liberty Lane
Hampton, New Hampshire 03842
Conrad Simon, Director
Air and Waste Management Division
EPA - Region II
26 Federal Plaza
New York, New York 10278
Bernard Fryshman, Ph.D.
1016 East Second Street
Brooklyn, New York 11230
Samuel A. Bishop
Bishop & Schriffen, Consultants
440 East 20th Street
New York, New York 10009
Larry Shapiro
New York Public Interest Research
Group, Inc.
9 Murray Street
New York, New York 10007-2272
Alexandra Callam
Assistant Regional Counsel
Office of Regional Counsel
EPA - Region II
26 Federal Plaza
New York, New York 10278
By Hand:
Bessie Hammiel
Headquarters Hearing Clerk
Room 3708 (A-110)
____________________________________
Diane L. Weeks
Branch Secretary
Dated: March 5, 1992
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