OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

57) ll-K-14 

Docket Number: 

A-90-37 

•£•1-1 

Printed 10/29/2008 10:46:20 AM Sheet 57 of 142 
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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

Union County Resource Recovery 

Facility 

Permit Application No. [pending] 

:,l25 

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~~s~jyrk.2. . , -, *\ PSD Appea l No-.-'90-1' '• •) -Jr-. -•- ../*, J -

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ORDER DENYING REVIEW 

On February 2, 1990, the Rutgers Environmental Law Clinic 

filed a joint petition on behalf of Concerned Citizens for the 

Environment, a civic association of citizens residing in Union 

County, New Jersey; Ann Parker and David Brown, members of the 

civic association; and Neil Seidman, Ph.D. Petitioners seek 

review of a permit determination made by the New Jersey 

Department of Environmental Protection (DEP) that authorizes the 

Union County Utilities Authority to construct a resource recovery 

facility in Rahway, New Jersey, consisting of three 480 ton-perday municipal solid waste incinerators and associated structures 

and equipment.

 v Petitioners contest DEP's determination that a 

semi-dry scrubber and fabric filter represent the best available 

y

 DEP made its determination pursuant to a delegation of 

authority from the U.S. Environmental Protection Agency, Region 

II, New York, New York under 40 CFR §52.21(u). Because of the 

delegation, DEP's authority to issue PSD permits is subject to 

the review provisions of the applicable EPA regulations, 4 0 CFR 

§124.19 (1989), and any permit it issues will be an EPA-issued 

permit for purposes of federal law. 40 CFR §124.41; 4 5 Fed. Reg. 

33413 (May 19, 1980). 
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2 

control technology (BACT)

 y for control of mercury emissions at 

\ tile proposed facility. 

The review provisions of EPA's regulations authorize me to 

review PSD permit determinations upon receipt of a petition, if, 

among other things, certain eligibility or "standing" 

requirements have been met by the petitioner, 40 CFR §124.19(a). 

Among them is the requirement that the petition must contain a 

statement demonstrating "that any issues being raised were raised 

during the public comment period (including any public hearing) 

to the extent required by these regulations * * *." Id. The 

latter, in turn, require participants in the permit proceedings 

to "raise all reasonably ascertainable issues and submit all 

reasonably available arguments supporting their position by the 

close of the public comment period * * *." 40 CFR §124.13. 

Collectively, the purpose of these regulations is to ensure that 

all matters are first raised with the permit issuer. In this 

manner, the permit issuer can make timely and appropriate 

adjustments to the permit determination, or, if no adjustments 

are made, the permit issuer can include an explanation of why 

27 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 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. 
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3 

none are necessary. As explained in the preamble to the 

regulations, "[t]he later stages [of the permit proceedings] are 

appellate in nature and new issues should not be raised on 

appeal." 45 Fed. Reg. 33411 (discussing §124.13). 

An examination of petitioners' appeal discloses that it does 

not contain the requisite statement on standing; nor does it 

purport to establish, much less claim, that the issues on appeal 

were not reasonably ascertainable when the permit was pending 

before DEP. In this latter respect, DEP, in its response to the 

petition for review (submitted at the request of EPA's Chief 

Judicial Officer), ^ represents that none of petitioners' 

arguments were raised when the permit was pending before DEP. ^ 

DEP Response at 2. Since there is nothing in petitioners' 

submissions to the contrary, I conclude that the petition for 

review is procedurally defective for failing to demonstrate 

compliance with the standing requirements.

 v 

v

 DEP's response is dated April 5, 1990, and the 

Chief Judicial Officer's request is dated February 12, 1990. 

17 One comment submitted to DEP during the public comment period 

erroneously asserted that the impact of some priority pollutants 

such as mercury was overlooked. See Hearing Officer's Report for 

the Application by Union County Utilities Authority to Construct 

and Operate a Solid Waste Resource Recovery Facility at 105 (Dec. 

29, 1989) (Comment #69). This reference to mercury, however, is 

far removed from the argument (see discussion in text) 

petitioners are raising on appeal. In any event, as discussed 

above, the regulations place the burden on petitioners to 

demonstrate in their petition that the issues being raised were 

raised during the public comment period. Petitioners have not 

met that burden. 

y

 Petitioners submitted a reply, dated May 15, 1990, to New 

Jersey's response to the petition for review. Nothing in 

(continued...) 
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4 

Even if petitioners meet the requirements for standing, they 

have not persuaded me that DEP's permit determination requires 

review. Petitioners argue that the permit determination is 

defective because the BACT analysis on which it is based did not 

conform to EPA's "top-down" policy. That policy requires the 

applicant to identify the most stringent technology for 

controlling emissions of particular pollutants such as mercury. 

If the applicant does not intend to use that technology, it must 

point to appropriate statutory considerations for rejecting such 

technology, such as overriding economic, environmental, or energy 

concerns.

 y See Petition at 2-4. 

57 (... continued) 

petitioners' reply changes the analysis above, nor could it 

retroactively cure petitioners' failure to demonstrate that the 

issue it wishes to raise on appeal was raised in the record of 

the proceedings pending before DEP. 

v

 For a discussion of the top-down approach to BACT analysis, 

see generally In the Matter of Spokane Regional Waste-to-Energy, 

PSD Appeal No. 88-12 (Dec. of the Administrator, June 9, 1989), 

quoting the following excerpt from a guidance memorandum by EPA's 

Assistant Administrator for Air and Radiation: 

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 

(continued...) 
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5 

In the BACT analysis at issue here, the applicant considered 

three alternatives for controlling mercury emissions: 1) a 

semi-dry scrubber followed by a fabric filter; (2) a semi-dry 

scrubber followed by an electrostatic precipitator (ESP); and (3) 

an ESP followed by a wet scrubber. The applicant cited technical 

data showing that the removal efficiency of a given mercury 

removal technology is related to the temperature of the flue gas 

in the device. When the flue gas temperature drops below a 

certain point, the removal efficiency rises dramatically, 

suggesting that there is an optimal temperature range for mercury 

removal technologies. The applicant then compared the efficiency 

of the three technologies, operating within this optimal 

temperature range, and concluded that, of the three, the semidry scrubber followed by a fabric filter was the most effective 

in controlling mercury emissions. Because the applicant proposed 

to use the most stringent technology (i.e.. a semi-dry scrubber 

followed by a fabric filter), the applicant concluded that it was 

"not necessary to consider other technology options under the 

•top-down' BACT approach." See Solid Waste Facility Permit 

Application for the Union County Resource Recovery Project, Top 

Down BACT Analyses, Addendum IV, Volume 3, pp. a9-al2 (December 

1988) . 

v

(...continued) 

levels of control above the baseline case. 

Memorandum from Craig Potter, Assistant Administrator, to 

Regional Administrators (Regions I-X), at 4 (Dec. 1, 1987). 
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Petitioners contend that a semi-dry scrubber followed by a 

fabric filter is not the most effective technology for 

controlling mercury emissions. Petitioners believe that a 

technology using a wet scrubber (either a wet scrubber followed 

by a fabric filter or an ESP followed by a wet scrubber) is more 

effective because a wet scrubber will typically have a lower flue 

gas temperature than a semi-dry scrubber. Petitioners argue, 

therefore, that under EPA's top-down policy the applicant was 

required either to select a technology using a wet scrubber or to 

identify legitimate statutory reasons for rejecting such 

technology. For the following reasons, I conclude that DEP was 

not clearly erroneous in concluding that the technology selected 

by the applicant is the most effective. 

Petitioners' argument takes the form of the following 

syllogism. Mercury removal efficiency increases as flue gas 

temperature decreases. Wet scrubbers typically have lower flue 

gas temperatures than semi-dry scrubbers. Therefore, wet 

scrubbers are more effective at removing mercury emissions. The 

problem with this argument is its major premise. While both 

sides agree that mercury removal efficiency rises dramatically 

when the flue gas temperature drops below a certain point, it 

does not necessarily follow that removal efficiency continues to 

rise as the temperature drops even further. The graph 

correlating removal efficiency and temperature, relied on by 

petitioners, provides an illustration of this point. See 

Petitioner's Reply Brief, Appendix at 21a. The graph suggests 
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that there is an optimal temperature range and that within that 

range a difference in temperature does not result in an 

appreciable difference in removal efficiency.' In other words, 

when the temperature falls below a certain point, removal 

efficiency rises dramatically, but after that point, as 

temperatures drop even further, removal efficiency remains about 

the same. Thus, the technical data relied on by petitioners does 

not support the argument that wet scrubbers are more effective 

than semi-dry scrubbers. 

Petitioners also cite various technical articles which state 

or suggest that wet scrubbers are more effective than semi-dry 

scrubbers. These articles do indicate that scientists familiar 

with this issue have not reached a consensus on the most 

effective technology for removing mercury emissions. They do not 

show, however, that DEP was clearly erroneous in concluding that 

the applicant selected the most effective technology. Under the 

top-down policy, if an applicant selects the most effective 

technology, it is not required to justify its rejection of any 

other less effective technologies. It appears, therefore, that 

DEP's BACT determination was consistent with the top-down 

approach. 

In any event, the purpose of the top-down policy is to 

ensure that a given BACT determination complies with the 

statutory BACT requirements. It is clear from the record that 

DEP's BACT determination meets those requirements. Since the 

inception of the PSD program, EPA has interpreted the statutory 
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BACT definition as containing two core criteria: consideration 

of the most stringent control technologies available, and a 

reasoned justification of any decision to require less than the 

"maximum degree of reduction" in emissions, after considering 

"energy, environmental and economic impacts and other costs." 

This definition and approach are reflected in the Guidelines for 

Determining Best Available Control Technology (OAQPS, Dec. 1978), 

pp. 5-6. In the instant case, DEP satisfied these core criteria 

when it found that the permit applicant's proposed technology — 

a semi-dry scrubber followed by a fabric filter — was the most 

stringent control available for mercury. In addition, the 

facility will be implementing a source separation program for 

mercury batteries.

 1J Thus, under the BACT procedure prescribed 

27 On November 30, 1989, I approved a proposal under section 

111(b) of the Clean Air Act, 42 USCA §7411(b), to issue standards 

of performance that, contain, among other things, a materials 

separation requirement and a program to remove household 

batteries. In broad outline, the proposal will require municipal 

waste combustors to separate for recovery (i.e., for 

"recycling") 25% of the municipal solid waste by weight. If 

adopted in final form, the proposal will be applicable to new 

municipal waste combustors that "commence construction" within 

the meaning of 40 CFR §60.2 following publication of the proposal 

in the Federal Register. The proposal appears at 54 Fed. Reg. 

52251 (December 20, 1989). 

On November 30, 1989, I also approved proposed emission guidelines and compliance schedules under section 111(d) of the Act, 

42 USCA §7411(d), for existing municipal waste combustors. These 

guidelines, which will initiate state action to develop 

regulations controlling emissions from existing facilities, 

contain the same source separation provisions as the regulations 

proposed under section 111(b), except that the dates for 

compliance are farther in the future. The existing source 

guidelines are applicable to facilities that have "commenced 

construction" prior to the date of Federal Register publication. 

The proposed guidelines appear at 54 Fed. Reg. 52209 (December 

20, 1989). 
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9 

in the statute, the applicant was not required to justify its 

rejection of other technologies, since the technology selected 

was the most stringent. 

For the reasons stated, petitioners lack standing to obtain 

review of DEP's permit determination. Furthermore, even if they 

had met the standing requirement, they still did not meet their 

burden of demonstrating that the permit conditions should be 

reviewed. ^ Accordingly, I am denying the appeal. 

So ordered. 

Dated : NOV 2 8 I990 lXJU~Asv>~-^ 

William K. 

Administrator 

27 Under the rules governing this proceeding, there is no appeal 

as of right from the permit decision. See 40 CFR §124.19(a)(1) 

and (2). 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. 
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CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying 

Review, PSD Appeal No. 90-1, were mailed to the following by 

first class mail, postage prepaid. 

Constantine Sidamon-Eristoff 

Regional Administrator 

U.S. EPA, Region II 

26 Federal Plaza 

New York, NY 10278 

Margaret M. Hayden 

Edward Lloyd 

Rutgers Environmental Law 

Clinic 

University Heights 

15 Washington Street 

Newark, NJ 07102-3192 

Michael S. Caro 

Deputy Attorney General 

New Jersey Department of Law and 

Safety 

Richard J: Hughes Justice 

Complex — CN 112 

Trenton, NJ 08625 

Dr. Icial Atay, Acting Chief 

Bureau of Engineering & Regulatory 

Development 

Division of Environmental Quality 

New Jersey Dep't. of Environmental 

Protection 

401 East State Street, CN-027 

Trenton, NJ 08625 

Dated: ii 1-3*796 Tra&V \X°^^g^ 

Brenda H. Selden, Secretary 

to the Chief Judicial Officer