OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

46) ll-K-3 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 46 of 142 

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P.2 , 

BEFORE THS ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

Pennsauken County, New Jersey 

Resource Recovery Facility 

a - V-$ 1 

PSD Appeal No; isepan fvi r> 

25/995 nK 

REMAND PRPBR ~«V, ;-.--'^^7—« • 

In separate petitions filed pursuant to 40 CFR §124.0 " 

(1987), V the Township of Cinnaainson __ ai.

 v and Robert 

Filipczak requested review of a Prevention of Significant Deterioration (PSD) permit issued to the Pennsauken Solid Waste Management Authority for construction of a municipal waste combustor. 

The permit determination was made by the New Jersey Department of 

Environmental Protection (NJDEP) pursuant to a delegation of 

authority from EPA Region II, New York, New York. Because of the 

delegation, NJDEP1s 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). 

V All references to the Code of Federal Regulations are to the 

1987 edition. 

27 The Township of Cinnaminson is joined in the petition by the 

Borough of Palmyra and the Borough of Riverton, which are municipalities located in Burlington County, New Jersey, and by Allied 

Citizens Opposing Pollution (ACOP), a civic association. 
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2 

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 Region level * * *." 45 Fed. Reg. 

33,412 (May 19, 1980). The burden of demonstrating that the 

permit conditions should be reviewed is therefore on the 

petitioners. 

Discussion 

Cinnaminson __ __. object to issuance of the permit because 

they believe NJDEP's determination of best available control 

technology (BACT) is deficient.

 v According to these petitioners, NJDEP did not give adequate consideration to thermal de-NO 

V To obtain a PSD permit, the applicant must demonstrate that 

the proposed facility will employ BACT for each regulated pollutant. Section 169 of the Clean Air Act defines BACT as an 

"emission limitation reflecting the maximum degree of reduction" 

that the "permitting authority," on a "case-by-case basis, taking 

into account energy, environmental, and economic impacts and 

other costs" determines is "achievable." 42 U.S.C. §7479(3). 

Because BACT is determined on a case-by-case basis and takes into 

account energy, environmental, and economic impacts and other 

costs, which may vary from location to location, a BACT determination for a municipal waste combustor at one site may differ 

from one reached at another site, even though the technology 

employed may be identical. In other words, the emission limitations for the sites can differ. 
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technology in performing the BACT analysis. Petitioners argue 

that NJDEP*fi determination not to set an emission limitation 

based on thermal de-NOx technology was based on an inadequate 

record, resulting in part from NJDEP having made its BACT determination prior to the time of permit issuance. Petitioners also 

argue that the BACT analysis submitted by the permit applicant 

did not adequately justify use of combustion controls (the means 

chosen by the applicant for controlling N0X emissions from the 

proposed facility) instead of thermal de-NOx technology, NJDEP 

responded to these contentions by arguing that the record actually discloses that the BACT determination was made at the time of 

permit issuance; that the permit applicants' BACT evaluation 

fully evaluates alternative control technologies, including 

thermal de-NOx technology; and that"thermal de-NOx technology is 

not yet "available" within the meaning of the statutory definition of BACT. Regarding the last point, NJDEP stated that there 

was just one facility in the United States (the Commerce facility 

in Whittier, California) employing thermal de«-NOx technology, and 

that it had been in operation only one year; that there is just 

one facility currently under construction (in Modesto, 

California); and that a third (in Long Beach, California) began 

operations after the Pennsauken permit was issued and therefore 

could not have been considered at the time of permit issuance. 

With respect to these facilities, NJDEP says they were reviewed 
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under legal standards ^ and N0X control strategies ^ not pertinent to the Pennsauken facility. 

An examination of the materials identified by NJDEP as 

representing the NOx BACT analysis ^ generally bears out petitioners' contention that the BACT analysis on which NJDEP relied 

is inadequate. Specifically, the record fails to disclose that 

the applicant net its burden of showing that an emission limitation based on combustion controls alone represents BACT. The 

basic attributes of that burden are set out in Honolulu Resource 

Recovery Facility ("H-Power"). PSD Appeal No. 86-8 (June 22, 

1987), where I interpreted the statutory definition of BACT as 

placing the burden on the applicant of "demonstrating that signiV NJDEP po.lnts out that the South Coast Air Quality Management 

District in California (SCAQMD) treats NOx as a non-attainment 

pollutant requiring lowest achievable emission rate (LAER). In 

point of fact, however, one of the three facilities (Modesto) is 

located in an area that is attainment for NOx, and EPA issued a 

PSD permit for it with a BACT limitation based on thermal de-N04. 

EPA Region IX issued the permit on August 11 1986. Telephone 

conversations between Ronald L. McCallum, EPA Chief Judicial 

Officer, and Bob Baker, EPA Region IX (October 5 and November 11, 

1988). 

V According to NJDEP, the Commerce facility was permitted under 

California rules as innovative technology, and all of the 

facilities are in locations where NO emissions fall under the 

South Coast Air Quality Management District's (SCAQMD1s) control 

strategy for ozone. Conversely, New Jersey focuses on volatile 

organic compounds (VOCs) for its ozone control strategy. 

^ See Final Environmental and Health Impact Statement 

("FEHIS"), Volume I, at 5-36 through 5-56 (Jan. 1987); FEHIS 

Response to Comments, Volume I at 211-213 (June 1987)? Hearing 

Officer's Report at 226 (June 30, 1988). 
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fleant 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]." l_. at 7, 6 n.9. This interpretation was disseminated 

in operational guidance for municipal waste combustors on June 

26, 1987,

 v and was further refined in general guidance issued 

by EPA's Assistant Administrator for Air and Radiation on 

December 1, 1987. The latter guidance refers to the applicant's 

burden as the "top-down" approach to BACT analysis: 

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. 

The "top-down" approach is essentially required for municipal waste combustors pursuant to the June 22, 1987, 

Administrator's remand to Region IX of the H-Power BACT 

decision and the OAQPS June 26, 1987, "Operational Guidance 

on Control Technology for New and Modified Municipal Waste 

Combustors (MWC's)." It is also currently being successfully implemented by many permitting agencies and some of the 

V Memorandum 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." 
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Regional Offices for all sources. I have therefore 

determined it should be adopted across the board. ^ 

The H-Power decision, the operational guidance for municipal 

waste combustors, ^ and the "top-down" guidance are all applicable to the Pennsauken permit determination. H-Power was my 

direct administrative interpretation of the statutory BACT 

requirement; the subsequent operational guidance and "top-down" 

guidance implement H-Power through statements of Agency policy. 

All three documents antedate issuance of the permit. ^ These 

V' Memorandum from J. Craig Potter, Assistant Administrator, to 

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

Potter Memorandum). 

v

 The Operational Guidance expressly states that it applies to 

all PSD permits issued through State and local agencies pursuant 

to delegation agreements made under 40 CFR §52.21(u), except 

where a final permit was issued and administrative appeals under 

40 CFR Part 124 were exhausted prior to June 26, 1987. 

Operational Guidance at 7; see also 52 Fed. Reg. 25399, 25406 

(July 7, 1987); 52 Fed. Reg. 47826 (December 16, 1987). The 

j "top-down" guidance contains statements to the same effect. 

Potter Memorandum 4. 

XV The chronology of the Pennsauken permit is as follows: the 

permit application was filed in January 1987; it was supplemented 

j with a BACT analysis for N0X in June 1987 (including an 

j evaluation of thermal de-N0x technology); NJDEP completed its 

BACT assessment in December 1987; hearings were held and public 

comment was solicited in January-February 1988, in which 

commenters questioned the absence of an NOx emission limitation 

based on application of thermal de-NOx technology; and lastly, 

the permit was issued in July 1988, specifically rejecting 

thermal de-NO,, as representing BACT for this facility. 
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interpretations and policy statements were therefore available to 

the applicant and NJDEP for the Pennsauken permit. ^ 

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. 

Here, NJDEP contends that thermal de-NOx technology is not available; however, there is nothing of substance in the applicant's 

BACT analysis to bear out this contention. If anything, it is 

^ As a practical matter, BACT determinations will ordinarily be 

made at some time prior to actual issuance of the permit, for 

there is always a lag between closure of the administrative 

record (usually the close of the public comment period) and the 

time when the permit determination is announced. As noted in 

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), 

quoting ICC v. Jersey City, 332 U.S. 503 (1944): 

Administrative consideration of evidence * * * always 

creates a gap between the time the record is closed and 

the time the administrative decision is promulgated 

[and, we might add, the time the decision is judicially 

reviewed] * * *. If upon the coming down of the order 

litigants might demand rehearings as a matter of law 

because some new circumstance has arisen, some new 

trend has been observed, or some new fact discovered, 

there would be little hope that the administrative 

process could ever be consummated ln an order that 

would not be subject to reopening. 

435 U.S. at 554-55; s__ Nance v. EPA, 645 F.2d 701 (9th Cir. 

1981) (quoting Vermont Yankee supra). 

Absent unusual delay between the close of the public comment 

period and the date of permit issuance, or the presence of other 

extraordinary circumstances, the close of the public comment 

period can be used aa the reference by which the adequacy of the 

administrative record is judged. 
^ 9 ^ 

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refuted by reference to the Commerce facility, which was in 

existence and operating during NJDEP's review of the permit 

application, and by referenoe to the evident willingness of the 

Modesto and Long Beach applicants to commence construction of 

their municipal waste combustors during the same period of 

consideration. The fact that these projects were undertaken to 

comply with allegedly different legal requirements (LAER or 

California rules) and different control strategies is not 

especially material to the issue of availability. ^ The 

question of availability for purposes of BACT is a practical, 

factual determination, using conventional notions of whether the 

technology can be put into use. & The record here raises a 

strong presumption in favor of concluding that thermal de-NOx 

technology is available in the sense just described. The operational guidance, issued June 26, 1987, also treats thermal de-NOx 

technology as an available technology that "should be considered 

by permitting authorities in making BACT determinations." Operational Guidance at 6. In short, the applicant's BACT analysis 

must evaluate thermal de-NOx as an available technology. 

The applicant's BACT analysis, however, does not contain the 

level of detail and analysis necessary to satisfy the applicant's 

W See notes 4 and 5 supra. 

^ The dictionary defines the word "available" as that which can 

be "used," or is "usable," or can be "got, had, or reached; * * * 

accessible." Web3ter'B New World Dictionary of the American 

Language 96 (2d College ed. 1972). 
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burden, as previously described, of showing that thermal de-NO^ 

technology is technically or economically unachievable for this 

source. The applicant's assertions that the technology has not 

yet been demonstrated to be efficient, ^ reliable, and cost 

effective in controlling N0X are merely conclusory. & Moreover, 

they.were made in a January 1987 submission and are undoubtedly 

out-of-date in view of the rapid developments in the application 

of this technology. Although the BACT analysis shows control 

costs in the range of $1300-1500 per ton of NOx removed, & there 

is no serious discussion of cost effectiveness. For example, the 

applicant estimated annual costs of removing NOx at $200,000 to 

$250,000 using thermal de-NOx technology. FEHIS (Response to 

Comments) at 212 (Table 16.1-1). However, there is no discussion 

that even purports to show that these costs are unusually high. 

Greater efforts must be made by the applicant to show that .^ 

thermal de-NOx ia economically infeasible or otherwise not 

achievable in this case. This might be done, for example, by 

W The applicant's own submissions refute this contention. 

According to the applicant, N0X emissions for the proposed facility would be 88.9 lb/hr using combustion controls compared 

with 35.6 to 62.2 lb/hr using thermal de-NOx technology. FEHIS 

Response to comments 211-212 (Table 16.1-1 (June 1987). Pollutant reductions of this magnitude are clearly significant. 

li/ _Q_ FEHIS at 5-48. 

& When operated at the peak fuel feed rate of 500 tons per day, 

for 365 days per year, the total annual emissions of NOx at the 

proposed facility are estimated at 389.3 tons. FEHIS at 5-37 

(Table 5.3-3), 
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obtaining and analyzing operating data and other information from 

the Commerce facility — and perhaps also from the Long Beach 

facility, which recently commenced operations. H-Power and EPA's 

guidance implementing that decision contemplate a much more 

thorough explanation, based on consideration of objective technical and economic data, to substantiate the contention that 

thermal de-NOx is an experimental, unproven technology. In sum, 

the BACT analysis does not contain sufficient justification, 

specific to the proposed facility, to justify the level of 

control proposed in the permit. More detail and analysis is 

required. 

Petitioner Robert Filipczak's fundamental objections to the 

Pennsauken permit are not with the control technology, but 

rather, with the municipal waste combustor Itself. He urges 

rejection of the combustor in favor of co-firing a mixture of 20% 

refuse derived fuel and 80% coal at existing power plants. These 

objections are beyond the scope of this proceeding and therefore 

are not reviewable under 40 CFR §124.19, which restricts review 

to "conditions" in the permit. Permit conditions are imposed for 

the purpose of ensuring that the proposed source of pollutant 

emissions — here, a municipal waste combustor — uses emission 

control systems that represent BACT, thereby reducing the 

emissions to the maximum degree possible. These control systems, 

as stated in the definition of BACT, may require application of 

"production processes and available methods, systems, and 

techniques, including fuel cleaning as treatment or innovative 
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fuel combustion techniques" to control the emissions. 4 2 

U.S.C.A. §7479(3). The permit conditions that define these 

systems are imposed on the source as the applicant has defined 

it. Although imposition of the conditions may, among other 

things, have a profound effect on the viability of the proposed 

facility as conceived by the applicant, the conditions themselves 

are not intended to redefine the source, as petitioner Filipczak 

would have them do. In other words, the source itself is not a 

condition of the permit. Therefore, petitioner's objections to 

the permit are not within the scope of this proceeding. Other 

matters raised by petitioner that are arguably within the scope 

of the proceeding, for example, the adequacy of the BACT analysis 

as it relates to mercury emissions and removal of metals as a 

fuel cleaning procedure, have not been presented in a manner to 

convince me that NJDEP committed clear error or that an important 

issue warranting review has been raised at this time. Therefore, 

the petition is denied. 

conclusion 

The deficiencies in the BACT analysis leave two courses of 

action open at this juncture of the proceedings, one is to grant 

review of the permit and enter into the briefing phase 

contemplated by 40 CFR §124.19(c). However, the deficiencies in 

the record can not be rectified through the submission of briefs, 

and any ensuing decision would likely conclude that the permit 

should be denied (because of the deficiencies) or that it should 

be remanded to the permit-issuing authority to allow the ap-
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plicant to supplement the BACT analysis. Considerations of time 

favor remanding the permit in the first instance. Therefore, 

rather than receiving additional briefs on appeal, I am remanding 

the case to NJDEP for further consideration of the BACT analysis, 

solely as it relates to N0X emissions. This remand should not be 

viewed as prejudging the issue. NJDEP is simply directed to 

reopen the permit proceeding for the limited purpose of allowing 

the applicant to supplement its original BACT analysis in accordance with the guidance described in this decision. If, after a 

full review of the data NJDEP determines that N0X emission levels 

obtained from combustion controls alone represent BACT, it may 

reissue the permit as written. It may, of course, revise the 

limitations and other conditions of the permit as appropriate. 

After making the determination," NJDEP should reopen the 

public comment period to receive any supplemental comments from 

petitioners Cinnaminson e_ _},. on the issue of the N0X limitations-in the permit. NJDEP's determination on remand will be 

subject to review under 40 CFR §124.19, and appeal of its 

decision on remand will be required to exhaust administrative 

remedies under section 124.19(f)(l) (iii). 

So ordered. 

Dated: £ W * I *> \ W 

P.13 

M 

Lee M. Thomas 

Administrator 
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CERTIFICATE OF SHRVIC2 

I hereby certify that copies of the foregoing Order on 

Petitions for Review in the matter of Pennsauken County, New 

Jersey, Resource Recovery Facility, PSD Appeal no. 88-8, was mail 

to the following by first class mail, postage prepaid. 

Michael S. Caro 

Deputy Attorney General 

Department of Law & Public Safety 

Division of Law, CN 112 

Environmental Protection Section 

Richard J. Hughes Justice Complex 

Trenton, NJ 08625 

William J. Muszynski 

Acting Regional Administrator 

U.S. EPA, Region II 

26 Federal Plaza 

New York, NY 10278 

Thomas J. Genuine 

19 Market Street 

Morristown, NJ 07960 

Robert Filipczak 

402 Dahlia Street 

Northfield, NJ 08225 

Robert P. Bedell 

Myerson, Kuhn and sterrett 

1330 Connecticut Avenue, NW 

Washington, DC 20036 

Dated: MoUeftJoAr 10,| W jTfW M P . Stf An 

J

 Brenda H. selden, Secreta ry 

to the Chief Judicial Officer