p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

48) ll-K-5 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 48 of 142 
y|. .• P.2 

•» » 

W- »V ... 

BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

Spokane Regional Waste-to-Energy 

Applicant 

ft ^S 

P S D Appeal•sN6'."f-8"8;-12 -—•-» 

'..•: -'.Jj|. 

Ji2§j995 ^ ' 

5 IK*? 

ORDER DENYING REVIEW J R7.A / Y^^^- S 

In a joint petition filed pursuant to 40 CFR §124.19 (1988), 

Citizens for Clean Air and Council for Land Care and Planning 

("Petitioners") requested review of a Prevention of Significant 

Deterioration (PSD) permit issued to the Spokane Regional Waste 

To Energy Project ("Spokane") for construction of an 800-ton-perday 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") pursuant to a 

delegation of authority from EPA Region X, Seattle, Washington. 

Because of the delegation, Ecology's permit determination is 

subject to the review provisions of 40 CFR §124.19, and any 

permit it issues will be an EPA-issued permit for purposes of 

federal law. 40 CFR §124.41; 45 Fed. Reg. 33,413 (May 19, 1980). 

Petitioners object to the issuance of the permit because 

they believe it is deficient in several respects. In particular, 

they claim the permit does not meet "best available control 

1/ 

^ All references to the Code of Federal Regulations (CFR) are 

to the 1988 edition. 
P.3 

.'« 

2 

technology" (BACT) requirements for emissions of nitrogen oxides 

(N0X) and for emissions of "trace [sic] metals and toxic pollutants such as dioxins and furans." ^ Petition at 2. In 

making a BACT determination for N0X, Petitioners claim that 

"thermal de-NOx," not combustion controls, is BACT. For the 

other pollutants, Petitioners allege that Ecology did not give 

adequate consideration to "fuel cleaning and separation" and did 

not consider economic, environmental, and other costs associated 

with the incineration of "recyclable materials." Id. at 2-3. 

Ecology responds by arguing that the N0X issue is now moot 

because the City has subsequently agreed to modify the facility 

to incorporate N0X controls employing thermal de-NOx or an equivalent technology. With respect to fuel cleaning and separation, 

Ecology argues that these practices need more study — to gather 

information about costs and impacts — before Ecology would be 

able to determine whether they represent a better emissions 

& It is not clear what Petitioners mean by trace metals; 

however, I assume they are referring to small quantities of 

"heavy metals" such as lead and mercury. Cf. notes 8 and 28. 

Petitioners assert three other grounds for review: (1) 

emission levels for PM10 should be set in accordance with a LAER 

standard, not BACT; (2) the assessment of the impact of CO 

emissions on nearby areas is inadequate; and (3) Ecology erred in 

not setting emission levels for dioxins, furans, and chloroform. 

There is no merit to these allegations. As noted by Region X in 

its response to the Petition, BACT, not LAER, is the correct 

standard to be applied to PM.0; Ecology correctly followed EPA 

guidance and concluded that there would be no adverse effect on 

nearby CO non-attainment areas; and EPA has no authority under 

the Clean Air Act to prescribe emission limitations for unregulated pollutants (cf. note 8, infra) such as dioxins, furans, and 

chloroform. See EPA Response at 8. 
P.4 

3 

control method than the controls currently proposed for the 

facility. " Spokane likewise argues that fuel cleaning and 

separation are not BACT, and it points out that these and other 

similar practices have undergone thorough evaluation in connection with Spokane's overall waste management strategy, which 

calls for recycling, waste reduction, the proposed "waste-toenergy facility," and one or more new regional landfills designated for non-recyclable and residual wastes only. 

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 

regulation states, "this power of review should be only sparingly 

exercised," and "most permit conditions should be finally determined at the Regional [State] level * * * ." 45 Fed. Reg. 33,412 

(May 19, 1980). The burden of demonstrating that the permit 

conditions should be reviewed is therefore on Petitioners. In 

this case I have determined that Petitioners have met their 

burden with respect to the N0X issue but not with respect to 

heavy metals and toxic pollutants. 

2/ Ecology Fact Sheet at 3 (December 7, 1988). 
P.5 

Discussion 

Before addressing the issues presented by the appeal, I 

believe it would be worthwhile to state first what the case is 

not about. It is not about the desirability of recycling for 

municipalities planning to build solid waste incinerators. I 

consider recycling in its various manifestations, including offsite (curbside) separation of newspapers, bottles, and aluminum 

containers, and on-site mechanical separation processes, as an 

essential part of intelligent planning for the solid waste 

disposal predicament that more and more of our Nation's cities 

are facing. ^ Nor is this case about the desirability of recycling for Spokane in particular. The Spokane waste-to-energy 

project ^ calls for extensive recycling, including a centralized, curbside recycling program to be implemented by January 30, 

1991. The City's plans also include three drop-off centers in 

different locations in the Spokane area. The centers will 

contain facilities for citizens to leave recyclable materials, 

which are designated initially as newspaper, high grade paper, 

V See generally U.S. Environmental Protection Agency, Office 

of Solid Waste, "The Solid Waste Dilemma: An Agenda for Action" 

at 1 (February 1989) (Final Report of the Municipal Solid Waste 

Task Force) ("[M]ore than one third of the nation's landfills 

will be fuil within the next few years and many cities are unable 

to find enough acceptable sites for new landfills or new combustors") . 

^ According to the Final [State] Environmental Impact Statement (FEIS) for the project, steam generated in the boilers will 

be used by a condensing turbine to generate electricity. The 

power output of the turbine will be approximately 22,000 kilowatts. FEIS at 14. 
P.6 

5 

corrugated paper, aluminum, three colors of sorted glass, scrap 

metals, and tin cans. ^ In addition, a "reusables" area for 

miscellaneous items — small appliances, baby furniture, books, 

toys, etc. — is also planned. According to EPA Region X, 

Spokane expects to obtain a recycling level of 31% by the year 

2008. EPA Response at 6. 

Recycling is indeed an issue in this case, but in a significantly narrower context than just described. The focus here is 

on whether Ecology erred in its BACT determination 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, for 

control of heavy metal and toxic pollutant emissions. -

; In 

other words, if fuel cleaning and separation in this particular 

technological configuration would allow Ecology to set emission 

67 Spokane's Response to Petition for Review, Attachment 5 

(Grant Amendment No. 1 — Amended Project Description, Conditions 

B, C, and D). 

1J Traditionally, EPA has not required a PSD applicant to 

change the -fundamental scope of its project. See Pennsauken 

Resource Recovery Facility, PSD Appeal No. 88-8 at 11 (EPA 

November 10, 1988) (Order Denying Review) (BACT permit conditions 

"are not intended to redefine the source"). Therefore, to give 

Petitioners the benefit of the doubt, I will not construe their 

petition as advocating a redefinition of the Spokane project by 

proposing fuel cleaning and separation as a substitute for 

conventional, state-of-the-art pollution control technology. 

Rather, I will assume Petitioners are advocating the addition of 

fuel cleaning and separation to the controls already proposed for 

the facility. 
P.7 

6 

levels for regulated air pollutants & that are demonstrably 

lower than the levels achievable using the proposed control 

equipment, then Ecology would have erred in its BACT determination by not analyzing fuel cleaning and separation sufficiently. -' 

The second major issue presented by the appeal, unrelated to the 

^ Petitioners do not identify the specific regulated air 

pollutants that supposedly do not meet BACT requirements. This 

omission contributes to the serious lack of specificity in the 

petition, discussed elsewhere in the text of this decision, for 

not all pollutants are regulated pollutants, whereas only regulated pollutants are subject to BACT. Similarly, not all heavy 

metals and toxic pollutants — i.e., the ones of specific concern 

to Petitioners — are regulated pollutants, and thus not all of 

them are subject to BACT. The list of regulated pollutants 

include some heavy metals but not toxic pollutants such as 

dioxins and furans. The regulated pollutants include: arsenic, 

asbestos, benzene, beryllium, carbon monoxide, fluorides, hydrocarbons, hydrogen sulfide, lead, mercury, nitrogen oxides, ozone, 

particulate matter, radionuclides, radon-222, reduced sulfur 

compounds, sulfur dioxide, sulfuric acid mist, total reduced 

sulfur, vinyl chloride and volatile organic compounds. See 40 

CFR §52.21(b) (23) (prevention of significant deterioration of air 

quality) ; 40 CFR Part 61 (National Emission Standards for Hazardous Air Pollutants). 

27 The focus of a BACT determination is not always on regulated 

pollutants. In some circumstances, an alternative technology for 

controlling a regulated pollutant may be deemed BACT in preference to another technology, even though application of the former 

does not result in lower emission levels than the latter. This 

circumstance occurs, for example, whenever an analysis of the 

overall environmental impacts of the two technologies demonstrates that one will have lower adverse impacts than the other. 

We are not confronted with this issue in this case because, as 

explained in the text, Petitioners have not established, as a 

threshold matter, that fuel cleaning and separation, when used in 

combination with conventional, state-of-the-art pollution control 

equipment, are "available" control technologies for control of 

regulated pollutants. Unless this advocated additional control 

technology is available for the primary purpose of controlling 

emissions of regulated pollutants, the permit issuer is not required to include that control technology in the BACT analysis or 

consider, as a secondary matter, the effect of that technology on 

unregulated pollutants or its other collateral environmental 

impacts. 
P.8 

7 

recycling issue, is whether Ecology also erred in its BACT 

determination by not requiring thermal de-NOx for control of N0X 

emissions. Resolution of these issues necessarily begins with an 

examination of the process of making the BACT selection from 

among competing technologies. 

The statutory phrase "best available control technology" or 

BACT, as it is customarily abbreviated, refers to a technological 

standard that applies to facilities subject to PSD requirements. 

It is defined in section 169(3) of the Clean Air Act —' as an 

"emission limitation" ^ reflecting the "maximum degree of 

—

; The complete text of the BACT definition states: 

The term "best available control technology" means an 

emission limitation based on the maximum degree of reduction 

of each pollutant subject to regulation under this chapter 

emitted from or which results from any major emitting 

facility, which the permitting authority, on a case-by-case 

basis, taking into account energy, environmental, and 

economic impacts and other costs, determines is achievable 

for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion 

techniques for control of each such pollutant. In no event 

shall application of "best available control technology" 

result in emissions of any pollutants which will exceed the 

emissions allowed by any applicable standard established 

pursuant to section 7411 [new source standards] or 7412 

[hazardous pollutant standards] of this title. 

^ The term "emission limitation" is defined in section 302(k) 

of the Clean Air Act as follows: 

Sec. 302. When used in this Act — 

* * * 

(k) The terms "emission limitation" and "emission 

standard" mean 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 

(continued...) 
P.9 

8 

reduction" of "each pollutant subject to regulation under the 

Act," which the permitting authority determines is achievable 

after "taking into account energy, environmental, and economic 

impacts and other costs." 42 USCA §7479(3). Achievement of an 

emission limitation may be secured "through application of 

production processes and available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel 

combustion techniques for control of each such pollutant." Id. 

Recent EPA guidance describes the process of selecting BACT 

for individual facilities. The process is based on a recognition 

that the statutory definition of BACT 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. If the applicant wishes to use some less effective control 

technology, the applicant must "demonstratee] that significant 

technical defects, or substantial local economic, energy, or 

environmental factors or other costs warrant a control technology 

less efficient than [the most stringent available technology]." 

^(...continued) 

maintenance of a source to assure continuous emission reduction. 

42 U.S.C. §7602(k). The regulatory definition of BACT provides 

that, to the extent technological or economic limitations in 

measurement methodologies would render an emissions standard 

infeasible, the Administrator may instead prescribe a design, 

equipment, work practice, operational standard, or combination 

thereof, fiee, e.g.. 40 CFR §52.21(b)(12). 
P.10 

Honolulu Resource Recovery Facility. PSD Appeal No. 86-8, at 7 

(EPA June 22, 1987) (remand of decision respecting S02 controls 

for a municipal waste incinerator). In guidance issued by EPA's 

Assistant Administrator for Air and Radiation on December 1, 

1987, W the process of selecting BACT — known as the "top-down" 

approach to BACT analysis — is described as follows: 

The first step in this approach is to determine, for the 

emission source in question, the most stringent control 

available for a similar or identical source or source 

category. If it can be shown that this level of control is 

technically or economically infeasible for the source in 

question, then the next most stringent level of control is 

determined and similarly evaluated. This process continues 

until the BACT level under consideration cannot be eliminated by any substantial or unique technical, environmental or 

economic objections. Thus, the "top-down" approach shifts 

the burden of proof to the applicant to justify why the 

proposed source is unable to apply the best technology 

available. It also differs from other processes in that it 

requires the applicant to analyze a control technology only 

if the applicant opposes that level of control; the other 

processes required a full analysis of all possible types and 

levels of control above the baseline case. ^ 

—' Memorandum from Craig Potter, Assistant Administrator, to 

Regional Administrators (Regions I-X) (Dec. 1, 1987). See also 

Memorandum from Gerald Emison, Director, EPA Office of Air 

Quality Planning and Standards (OAQPS) to EPA Regional Air Office 

Directors (June 26, 1987), enclosing "Operational Guidance on 

Control Technology for New and Modified Municipal Waste Combustors ." 

—' Memorandum from Craig Potter, Assistant Administrator, to 

Regional Administrators (Regions I-X), at 4 (Dec. 1, 1987). The 

"baseline case" and its relationship to the BACT selection 

process appears in an EPA guidance manual issued in October 1980. 

See EPA (Office of Air Quality, Planning, and Standards), Prevention of Significant Deterioration Workshop Manual, at II-B-1 et 

___., EPA-450/2-80-081 (October 1980). The selection process as 

outlined in the guidance manual was not inconsistent with the 

dictates of the statute; however, in practice, the process 

developed into what could be described as the "bottom up" 

approach, in which the permit applicant could select virtually 

(continued...) 
P.11 

10 

Applying the top-down approach to Spokane, the issue is 

whether the alternative controls advocated by the Petitioners — 

thermal de-NOx for NOx emissions, and fuel cleaning and separation for heavy metal and toxic pollutant emissions — represent 

the most effective or "top" technologies for control of regulated 

pollutants, or whether they represent some lesser level of 

control. If they represent the former, the BACT analysis performed by Spokane and approved by Ecology should have contained 

(but did not) an in-depth discussion of each alternative control 

technology to justify rejecting it as BACT. If, on the other 

hand, Petitioners' alternatives do not represent the top technologies, no detailed discussion of them is required in the BACT 

analysis, unless there is evidence to show that the alternatives 

are available for the primary purpose of controlling regulated 

pollutants and, despite not being the top technology, they are 

nevertheless BACT after giving appropriate weight to their 

collateral environmental (or energy) impacts. ^ Absent such 

^(...continued) 

whatever technology it deemed desirable from a business or 

utilitarian perspective — the so-called "baseline case" — and 

then, in a formidable challenge to the applicant's powers of 

objectivity, the applicant was expected to present a full and 

fair analysis of alternative technologies, including potentially 

more effective technologies. This approach presented too many 

opportunities for abuse, since it provided little or no incentive 

for the applicant to select the most effective technology, particularly when the most effective technology — as is often the 

case — was also the most expensive technology. 

^ See, e.g.. note 9. If the applicant and the permitting 

authority agree that the top technology for control of regulated 

pollutants should be selected as BACT, economic impacts that in 

(continued...) 
P.12 

11 

evidence, no detailed discussion of the alternatives is required 

since the analysis would only satisfy academic concerns and would 

have no effect on the outcome of the permit determination. Any 

failure on the part of the permit issuer to consider such a 

technology would amount to harmless error, at most. 

Did Ecology miscategorize either of the two types of technology when it rejected them and concluded that neither required 

additional analysis? This question is now moot for the thermal 

de-NOx issue; Spokane's subsequent decision to install an appropriate N0X emission control system employing either thermal de-NOx 

or an equivalent technology effectively decides the issue. All 

that remains to be done now is for Ecology to set numerical 

emission limitations for the N0X emissions using the agreed-to 

technology, and to prescribe monitoring requirements and operating restrictions as deemed necessary or appropriate. ^ 

The question is not as easily answered in the case of fuel 

cleaning and separation. To answer it, we first need to ascertain the permit issuer's responsibilities whenever deficiencies 

in a proposed permit determination are alleged. For instance, do 

the rules require the permit issuer to conduct a full-scale BACT 

&(...continued) 

theory could justify selection of less effective technologies are 

presumably not at issue. 

^ Ecology and Spokane will want to consider the optimization 

provisions discussed in the recent permit decision for the 

Pennsauken waste-to-energy facility in New Jersey. See 

Pennsauken Resource Recovery Facility, PSD Permit No. 88-8 (EPA 

April 20, 1989) (Order Denying Review). 
P.13 

12 

analysis of each alternative proposed by a commenter, regardless 

of the proposal's merit, or is it permissible for the permit 

issuer to tailor its response in proportion to the substantive 

merits of the proposal? In other words, if the comment is 

clearly without merit or is vague and lacks sufficient support, 

can the permit issuer dismiss the comment summarily or must it 

prove the comment's lack of substance by, for example, requiring 

the permit applicant to submit studies, tests, and comparisons 

demonstrating that the commenter's proposed alternative technology is unworkable or otherwise unsuitable? 

The applicable rules and case law fortunately adopt a rule 

of reason in answer to these questions, and thus do not require 

the permit issuer to respond in detail to all comments irrespective of their merit. Specifically, the permit issuer need only 

"describe and respond to all significant comments on the draft 

permit." 40 CFR §124.17(a)(2) (emphasis added). The permit 

issuer's response can be in proportion to the substantive merit 

of the comments. 

[T]he "dialogue" between administrative agencies and the 

public "is a two-way street." Home Box Office. 567 F.2d at 

35. Just as "the opportunity to comment is meaningless 

unless the agency responds to significant points raised by 

the public," id. at 35-36 (footnote omitted), so too is the 

agency's opportunity to respond to those comments meaningless unless the interested party clearly states its position. See Wisconsin Electric Power Co. v. Costle. 715 F.2d 

323, 326 (7th Cir. 1983) ("the rules of administrative law 

apply across the board, to agencies and interested parties 

alike"). 

> 

Northside Sanitary Landfill. Inc. v. Lee M. Thomas. 849 F.2d 

1516, 1520 (D.C. Cir. 1988) (interpreting the phrase "significant 
P.14 

13 

comments" in the rulemaking provisions of the Administrative 

Procedure Act). The Supreme Court has also held that a permit 

issuer may adopt a threshold test for determining how it responds 

to a comment or proposal. Vermont Yankee Nuclear Power Corp. v. 

NRDC. 435 U.S. 519, 551-555, 55 L.Ed. 2d 460, 98 S.Ct. 1197, 

1215-1217 (1978). The petitioners in Vermont Yankee had accused 

the Atomic Energy Commission of not giving adequate consideration 

to "energy conservation" as an alternative to licensing the 

construction of a nuclear power plant. The Commission held that 

it would only consider energy alternatives that were reasonably 

available, would curtail demand to the point where the power 

plant would not be necessary, and were susceptible of a reasonable degree of proof. The Commission concluded that petitioners 

had not met this threshold test because, inter alia, they had 

failed to "take into account that energy conservation is a novel 

and evolving concept." Vermont Yankee 98 S.Ct. at 1207. The 

Commission added that in view of "this emergent stage of energy 

conservation principles," it is incumbent on the petitioners to 

state "clear and reasonably specific energy conservation contentions." J&. The Court of Appeals held that the Commission's 

threshold test was arbitrary and capricious, but the Supreme 

Court overturned the appellate court, holding that the Commission's decision had to be judged in light of the information then 

available to it. Significantly, the Supreme Court noted that the 

petitioners' responsibility to present its position and contentions effectively was especially heavy when the Commission is 
P.15 

14 

being asked to "embark upon an exploration of uncharted territory, as was the question of energy conservation in the late 

1960«s and early 1970's." Id. 98 S.Ct. at 1216. 

In the case of the instant petition, as in Vermont Yankee, 

historical perspective is an essential ingredient of any threshold test, for fuel cleaning and separation are also new and 

evolving concepts insofar as air pollution control at municipal 

waste incinerators is concerned. Although arguably much is known 

about recycling in terms of how and what to recycle to achieve 

waste reduction, no hard data are presently 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. According to an EPA Municipal 

Waste Task Force Report just released in February 1989, information on reducing emissions from municipal waste incinerators 

through elimination of specific materials from the combustor — 

for example, through separation and recycling — is not well 

known: "[D]ata are currently inadequate to determine precisely 

the effect on air emissions and ash of eliminating specific 

materials from the waste stream prior to combustion." ^ 

This current paucity of knowledge is illustrated by the 

petition for review. Petitioners are unable to point to a single 

study or instance in which the addition of fuel cleaning and 

—' "The Solid Waste Dilemma: An Agenda for Action," supra note 

4, at 63. 
P.16 

15 

separation results in any emissions reductions over those obtained by the use of the highly effective conventional equipment and 

operating practices already required by the Spokane permit. 

Petitioners cite a study done by National Recovery Technologies, 

Inc. (NRT) for the proposition that removal of aluminum, steel, 

glass, and dirt from municipal waste will result in "a 30 to 75 

percent reduction of air emissions"; & however, an examination 

of this study fails to support Petitioners' statement, at least 

not in the manner intended by Petitioners. The study actually 

shows that these reductions represent comparisons of emissions 

from the separate burning of treated (cleaned) and untreated 

wastes, respectively, "prior to emissions control equipment and 

are not direct air releases." NRT Study at 4 (emphasis added). 

In other words, the study does not show that there would be a 

reduction in pollutant emissions had conventional pollution 

control devices been in operation. This omission is significant, 

because it is impossible to conclude from the study whether 

emissions would have increased, decreased, or stayed the same if 

conventional equipment had been in operation, ^ for it is well 

m

 Petition at 3. 

^ I disagree with Region X, which takes the position, Response 

at 6 (undated), that the results of the study "imply" that recycling, in combination with the current combustion and post-combustion controls proposed, would constitute the most effective 

method of reducing heavy metal emissions. Any such implication 

at this time is premature and speculative; the data warrant, at 

most, further investigation in the form of additional studies. 

Hence, it was not clear error for Ecology to not accept this 

implication. For much the same reasons, I attach no special 

weight to Ecology's "assumption," pointed out by Petitioners, 

(continued...) 
P.17 

16 

known that the conventional, state-of-the-art equipment required 

by the Spokane permit is highly effective in reducing emissions 

of heavy metals and most other pollutants, as well as reducing 

the specific pollutants for which the equipment is designed to 

control — principally S02 and particulate matter. ^ 

Petitioners also make reference to a BACT analysis performed 

by EPA Region IX, San Francisco, California, for a municipal 

waste incinerator to be built in San Marcos, California. This 

BACT analysis included source separation as a control option. —' 

Region IX concluded, however, that BACT for the incinerator was a 

lime slurry spray dryer system (dry scrubber) with a baghouse for 

the control of sulfur dioxide (S02), acid gas, and particulate 

emissions. Region IX specifically found that source separation 

provides poor control of heavy metals and fair control of dioxins 

—

;(...continued) 

that removing heavy metals from the fuel before combustion would 

reduce their emissions. 

—' See, e.g.. Memorandum, dated June 27, 1987, from Gerald 

Emison, Director, EPA Office of Air Quality Planning and Standards (OAQPS) to EPA Regional Air Office Directors, enclosing 

"Operational Guidance on Control Technology for New and Modified 

Municipal Waste Combustors" ("EPA today also draws upon the 

technical data referenced below, and its experience in issuing, 

reviewing, and enforcing PSD permits for [municipal waste combustors] MWCs. Recent emission test data have demonstrated that 

particulate matter (PM), S02, and other air pollutants (including 

[toxic] organics, heavy metals, and acid gases) can be controlled 

effectively by acid gas scrubbing devices (dry scrubbers) 

equipped with efficient particulate collectors" — page 4). 

227 Letter from Jean M. Mischel, attorney for Petitioners, to 

Jay Willenberg, Air Program, Washington Department of Ecology, 

dated November 2, 1988 (commenting on Ecology's preliminary 

approval of the permit). 
P.18 

17 

and furans. According to the Region, the lime slurry spray 

dryer, in contrast, provides excellent control of both heavy 

metals and dioxins and furans. ^ In short, Region IX's consideration and rejection of source separation in this one instance obviously furnishes no basis for saying Ecology erred by 

not including it in the Spokane BACT analysis. 

The absence of studies or actual operating results is 

especially fatal under the Clean Air Act, for the statutory 

definition of BACT requires a technology to be "available" for it 

to be considered as BACT. 22/ 

The permit applicant's burden of showing that a more 

stringent technology is not BACT obviously does not come 

into existence unless the so-called "more stringent" technology is available. If the technology is not available, 

the permit applicant is under no duty to consider it in the 

BACT analysis. 

Pennsauken Resource Recovery Facility. PSD Appeal No. 88-8, at 7 

(EPA November 10, 1988) (Remand Order). A technology is obviously not available in any meaningful sense if knowledge about its 

effect on emissions, in the particular configuration in which it 

would be employed, is so incomplete as to be unusable. Moreover, 

given the Clean Air Act's emphasis on granting or denying com21/ Id. (enclosure). 

227 As with the NRT study, the Region IX BACT analysis does not 

explore what levels of emission reductions might be achieved by 

using source separation and conventional pollution control 

equipment in combination with each other. The reason it was not 

done, I suspect, can be attributed to the same lack of essential 

data that is also apparent in this case. 
P.19 

18 

pleted PSD permit applications within one year of filing, ^ it 

would be unreasonable to read the term "available" as imposing a 

duty on the permit applicant to conduct time-consuming original 

research by generating new data for the purpose of discovering 

whether a potential, but unproven, technology might possibly 

prove successful. & Perhaps more importantly, without the 

requisite knowledge about the technology's effects on emissions, 

the technology also cannot be regarded as the "best" technology. 

Therefore, I conclude that Petitioners have not shown that fuel 

cleaning and separation, in combination with conventional, stateof-the-art pollution control equipment, constitute available 

technologies for purposes of the BACT determination. 

2^ The one year limitation appears in section 165(c) of the 

Clean Air Act: 

Any completed permit application under section 7410 of 

this title for a major emitting facility in any area to 

which this part applies shall be granted or denied not later 

than one year after the date of filing of such completed 

application. 

42 USCA §7475(c). The limitation is "directive in nature" not 

jurisdictional. Hancock County v. EPA, No. 83-3108, slip op. 

(6th Cir. Aug. 14, 1984), 22 Env't. Rep. Cas. 1714, 1719 (BNA). 

2^ This does not imply that a technology need have a proven 

application for the source category under consideration before it 

can be deemed "available." Technology transfer from one source 

category to another is appropriate for BACT purposes. Thus, a 

technology that is in actual use for controlling a regulated 

pollutant in one source category — and thus is clearly available 

— may be required for control of that same pollutant in another 

source category, provided sufficient data can be readily generated to establish transferability. However, that issue is not 

presented in this case. Here, there are no known facilities 

using the advocated technology (fuel cleaning and separation in 

combination with conventional, state-of-the-art pollution equipment) for control of regulated pollutants. 
P.20 

19 

Apart from the absence of studies or operating results to 

support the petition, the petition is also flawed in at least one 

other serious respect. Specifically, given the embryonic state 

of our knowledge about recycling in the present context, Petitioners also have a responsibility to satisfy a reasonable threshold 

of clarity and precision in their demands of the permit issuer. 

They have not done so in this case. For example, Petitioners 

never state exactly what they mean by fuel cleaning and separation. The omission is problematic because there is no uniform 

definition of fuel cleaning and separation, and Petitioners have 

not sought to clarify their intentions by supplying their own 

definition. Both terms in the context of the petition can be 

interpreted as referring simply to removal (separation) of 

objects such as car batteries, tires, glass bottles, and large 

metal appliances, so-called white goods, from the waste fuel 

before incineration. In fact, Petitioners identify "removal of 

aluminum, steel, glass, and dirt" as examples of separation 

possibilities. Petition at 3. However, Petitioners later expand 

their concept of separation to encompass use of refuse-derived 

fuel (RDF), which they refer to as an example of "mechanical" 
P.21 

20 

separation. 25/ Petitioners also use the term "source separation" 

in apparent reference to curbside separation of waste by homeowners, but without specifying how the waste should be separated. —

; 

Because of the uncertainty and confusion in their terminology, it 

is difficult to determine precisely what Petitioners are alleging 

Ecology failed to consider in its BACT analysis. 22/ The possibilities appear limitless. Under these circumstances, it is 

unreasonable to expect the permit issuer or the permit applicant 

to sort through all the possibilities in the hope of identifying 

some feasible practice that might satisfy Petitioners' expecta2-/ Significantly, however, RDF facilities are usually associated with a different combustor design and feed mechanism 

than the designs employed in mass-burn incinerators such as the 

one proposed for Spokane. As noted previously, EPA has not 

required PSD applicants to redefine the fundamental scope of 

their projects. See note 7, supra. For example, an applicant 

proposing to build a coal-fired boiler has not been ordered to 

build a gas-fired turbine although the latter is inherently less 

polluting. 

2^ Although the Clean Air Act easily contemplates object 

removal bv the permittee as a potential control technology ("fuel 

cleaning and treatment"), it is not at all clear that the permit 

issuer can require curbside separation bv homeowners as a condi1 tion of a PSD permit, and that issue is not decided here. 

Moreover, even where the requested condition is phrased as a 

limitation on the kinds of waste to be accepted by the permittee, 

if the requested limitations are extensive the proposal might 

Jj border on an improper request to redefine the source, i.e., to 

alter the fundamental scope of the project. See note 25, supra. 

w

 I note that Spokane, Ecology, and EPA Region X, in their 

responses to the petition, cope with the imprecision by glossing 

over it and providing, in effect, their own definitions of what 

they think Petitioners meant. No such powers of clairvoyancy 

should be necessary to respond appropriately to a petition. 
P.22 

21 

tions. I therefore conclude that the ill-defined scope of the 

petition alone is grounds for its dismissal. 25/ 

Conclusion 

Petitioners have not made an adequate case for reviewing the 

permit on the "fuel cleaning and separation" issue. As discussed, the petition fails to demonstrate that Ecology committed 

clear error in not requiring the permit applicant to develop more 

information on these practices. I say this because Petitioners 

are requesting Ecology to venture into territory that is not well 

charted, where the possible recycling and separation strategies 

that Spokane could adopt are virtually limitless and the results 

are unknown and not presently predictable. Therefore, it is not 

enough for Petitioners to say that benefits can be derived from 

these practices when our knowledge about them in the specific 

context of air pollutant emissions from municipal waste incineration is in the formative stages. To have warranted in-depth 

257 See also note 8 supra. The vagueness resulting from lack 

of definition cannot be dismissed as harmless error. For example, EPA's failure to define "recycling" in Clean Water Act 

regulations that established separate requirements for discharges 

of wastewater from crushed stone mining operations, depending 

upon whether the operator recycled the mine's wastewaters, 

prompted a reviewing court to express doubts about the validity 

of the regulations: 

The fact that the regulations do not define recycling 

may well make them void for vagueness under our decision in 

duPont. at p. 1033, where we set aside an EPA regulation 

because we were "not sure what it means in the context in 

which it is used." 

National Crushed Stone Ass'n v. E.P.A., 601 F.2d 111, 120 (4th 

Cir. 1979) (remanding the regulations on other grounds). 
P.23 

22 

consideration in the BACT analysis, Petitioners should have 

established as a threshold matter that these practices are 

"available" to the applicant, e.g., that there are sufficient 

data indicating (but not necessarily proving) that their additional control technologies, in conjunction with the conventional, state-of-the-art controls considered in the Spokane BACT 

analysis, will lead to a demonstrable reduction in emissions of 

regulated pollutants or will otherwise represent BACT. 22/ They 

have not done so in this instance. Petitioners have not pointed 

to a single facility anywhere (or even a study) that satisfies 

these threshold requirements. Therefore, this aspect of the 

petition is dismissed. 

It is clear that more and more communities will be using 

recycling in conjunction with incineration to address their 

municipal waste problems. As more information becomes available 

from these communities, it may overcome the deficiencies in the 

petition presented in this case, and if so, it may determine the 

potential of recycling practices for controlling regulated 

pollutant emissions under the PSD provisions of the Clean Air 

Act. The Agency expects future permit applicants to consider 

this information as it becomes available and to assess its 

potential for inclusion in their analyses of BACT. The rate at 

which this information becomes available is also likely to 

increase rapidly in the near future. In late January 1989, EPA 

—

7 Cf. note 9, supra. 
P.24 

23 

established a new Office of Pollution Prevention, which will 

include the study and development of environmentally sound 

recycling practices as part of its mission. 54 Fed. Reg. 3845 

(January 26, 1989). In addition, the Agency's February 1989 

Municipal Waste Task Force Report describes the many recent 

efforts to develop information and to effect positive changes in 

the way we deal with the problems of increasing waste generation 

and decreasing waste management capacity. Currently, however, 

not enough technical data are available to determine the air 

quality benefits of requiring fuel cleaning and source separation 

in combination with state-of-the-art air pollution equipment. 

As a final matter, I am also dismissing as moot the petition 

insofar as it concerns the N0X emission limitation and thermal 

de-NOx technology. I am doing this not because the petition 

lacks merit but because Spokane has agreed to install the requisite technology and to have the permit revised to reflect this 

change in the facility. Accordingly, I am remanding the permit 

to Ecology to revise the permit along these lines. Following 

reissuance of the revised permit, Petitioners shall be given the 

opportunity, in accordance with 40 CFR §124.19, to appeal any 

determination Ecology makes with respect to the revised NO 
P.25 

24 

limitation. Any such appeal shall be strictly limited to the 

scope of the revisions in the N0X limitation. 

So ordered. *2/ 

Dated: JUN 9 1969 t^£v^~v—' 

William K. Reil 

Administrator 

527 All pending requests to submit further comments or responses 

are denied. 

J 
P.26 

25 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying 

Review, PSD appeal No. 88-12, were mailed to the following by 

First class mail, postage prepaid. 

Laurie Sillers Halvorson 

Assistant Attorney General 

Ecology Division — M/S PV-ll 

7th Floor 

Highways Licenses Building 

Olympia, WA 98504-8711 

Stu Clark 

Wash. State Dep't. of Ecology 

Mail Stop PV-ll 

Olympia, WA 98504-8711 

David M. Bricklin 

Jean Mischel 

Bricklin & Gendler 

Fourth & Pike Building 

1424 Fourth Avenue, Suite 1015 

Seattle, WA 98101 

Gary O'Neal 

Air and Toxics Division 

U.S. EPA, Region X 

1200 Sixth Avenue 

Seattle, WA 98101 

Jay Willenberg 

Wash. State Dep't. of Ecology 

Mail Stop PV-ll 

Olympia, WA 98504-8711 

Craig Trueblood 

Preston, Thorgrimson, Ellis & 

Holman 

Suite 1400 

W. 601 Riverside Avenue 

Spokane, WA 99201 

David Birks 

Spokane Regional Waste-toEnergy Project 

West 808 Spokane Falls Blvd. 

Spokane, WA 99201 

Deborah Hilsman 

Office of Regional Counsel 

U.S. EPA, Region X 

1200 Sixth Avenue 

Seattle, WA 98101 

Dated: JUN - 9 1989 >1&A ll&flfe^ 

Brenda H. Selden, Secretary 

to the Chief Judicial Officer