Comments and Testimonies

January 25, 2005

CLEAN AIR COUNCIL SUPPLEMENTAL WRITTEN COMMENTS TO PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION ON INTENT TO ISSUE A MINOR PERMIT MODIFICATION TO HARRISBURG AUTHORITY: SOLID WASTE PROCESSING PERMIT NUMBER 100758.

Clean Air Council is a statewide non-profit citizen's organization dedicated to protecting the public's right to a healthy environment. The Council has members throughout Pennsylvania. Responses to these comments should be addressed to Toni Flora, Esq., Program Manager, Clean Air Council, 107 North Front Street, Suite 113, Harrisburg, PA 17101.

On January 25, 2005, Clean Air Council submitted oral testimony at the Community Life Center in Harrisburg. The Council incorporates that testimony by reference.

Clean Air Council submits the following additional written comments to the Department of Environmental Protection's (DEP) intent to issue a minor permit modification to the Harrisburg Materials, Energy, Recycling, and Recovery Facility (HMERRF) Solid Waste Processing Permit Number 100758. The Council appreciates the opportunity to submit formal comments as part of the permitting process.

The community being asked to host the HMERRF is well aware of the facility's long history of non compliance with permit requirements. Shortly after the facility opened in the 1970's, they were found in violation, and continued violating permits until its recent closure. Indeed the facility has been cited for such violations as keeping waste on site over twenty-four hours, accepting a dialysis bag into its waste stream, and allowing waste to be disposed of outside the facility just to name a few. The new facility was non complaint in when it first opened in the 1970's. The citizens are not assured that the new retrofitted facility will alter bad operating practices to stay in compliance with new permits.

The first glaring error which needs to be addressed is non-compliance with 25 Pa. Code §271.125(a)(1). This section clearly states that the applicant must include in their application a description or copy of the notices of violation during the past 10 years. Enclosed are eleven pages, eight of those list violations which are not mentioned in the applicant's permit. This is not a complete list of all violations, but surely expands on the two pages of violations that the applicant included.

An applicant for a waste processing permit, such as the HMERRF, "shall include an environmental assessment" with their application for a permit. 25 Pa Code § 271.126(a). There is an exception to the rule that excludes facilities applying for beneficial use of municipal waste; facilities processing municipal waste for beneficial use; and facilities that do not submit major modifications to their permit.

However, DEP can require an applicant for a minor permit modification to submit a harms/benefits analysis. This is clearly stated in 25 Pa Code § 271.126(b), before the exceptions are listed. DEP shall require a harms/benefits analysis if "the Department determines that the facility may have a significant effect on the environment." 25 Pa. Code § 271.126(b) (emphasis added). In other words, DEP can and should require a thorough harms/benefits analysis on the entire facility prior to issuing the Solid Waste Processing Permit to the HMERRF if it determines that there could possibly be significant harm to the environment.

Clean Air Council and local residents believe that there is a strong argument to be made that the HMERRF will have a significant effect on the environment as well as the public health. The past non-compliant history of the incinerator should be enough for DEP to insist upon a complete harms/benefits analysis before considering the permit complete.

The mere fact that HMERRF did not heed DEP's inspections should be enough to warrant the need for a harms/benefits analysis. One example of harm to the environment is the fact that in nine months between 2000-2001, the facility was found having stored trash on site for over 24 hours. Those were only the 14 times that DEP was made aware of. The facility was not able to correct the violation after the 1st time, or the 10th time. Only possibly after the 14th time being found in violation was the facility able to correct the violation. The fact that there were 14 of the same violations over a period of 9 months indicates that the environment will once again be placed in danger because of the employees' inability to follow permit requirements. This series of violations, coupled with the fact that the facility is allowed to accept 185 more tons of waste per day than it is allowed to burn, is simply asking for problems. Surely the harms/benefits analysis is a simple document to prepare compared with the permit application itself.

In addition to being in compliance with the statutes and regulations, the Commonwealth Court has developed a three prong test to assist in the determination of whether or not a facility should be allowed to operate. In Payne, the court clarified the three fold standard for decision makers to use when deciding whether or not to allow a certain facility to proceed. Tri-County Industries v. Commonwealth, 818 A.2d 574 (Pa. Commw. 2003) (citing Payne v. Kassab; 312 A.2d 86 (Pa. Commw. 1973)).

This standard is:
(1) was there compliance with all statutes and regulations relevant to the protection of natural resources;
(2) does the record show a reasonable effort to reduce the environmental incursion to a minimum; and
(3) does the environmental harm that will result from the challenged action or decision so clearly outweigh the benefits to be derived therefrom that to proceed would be an abuse of discretion.
Tri-County Industries, 818 A.2d at 581-82 (citing Payne, 312 A.2d 86).

Without utilizing the simple harms/benefits analysis, DEP is falling short in its duties to the community and is almost asking for a court to step in and implement the Payne test. DEP can not argue that the environment will be impacted the same way it was before it was closed. There has not been a comparison of the conflicting environmental and social harms against the benefits of the facility, and one needs to be done before operation commences.Clean Air Council believes, the Department of Environmental Protection has an obligation to the citizens of Harrisburg to utilize their discretion and require a harms/benefits analysis from the HMERRF .

Members of the community are truly concerned that no matter the requirements of the permit, the facility will chose to ignore those it does not care to abide by. Will DEP be truly surprised when the facility starts once again to be in violation of its permit? The Council has recently become aware of an instance where citizens taking a tour of the pre-retrofit incinerator noted a poster on the wall that urged facility employees not to burn ash between the hours of 6 a.m. and 7 p.m. This activity was not permitted, and this "off the books" policy can be easily denied when confronted. \. It is the Council's understanding that ash was not supposed to be burned at all. The citizen informed DEP, but no violation resulted. This hopefully alerts DEP to the fact that the operators of this facility can not automatically be assumed to be meeting their obligations under the permit. How does DEP propose to protect the community in such circumstances?.

The citizens are concerned that HMERRF's inability or unwillingness to comply with past permit requirements will not be resolved simply by retrofitting the facility and issuing a new permits. The citizens are also concerned that DEP's past inability to protect the them will continue. This is evidenced by the numerous violations that continued to reoccur despite fines and citations. As stated above, and in oral testimony, one example is the fact that the HMERRF was found in violation 14 times for allowing waste to remain onsite for over 24 hours. These 14 violations occurred over a period of 9 months between 2000-2001. DEP's deterrence mechanism failed at least 13 times to stop further violations. The citizens fear that DEP will not be able to effectively protect them from the incinerator should the incinerator repeat this behavior with the retrofitted facility.

In the permit application at Appendix F, the Final Materials Separation Plan, states in section II.4.c. and other sections that the waste spotter "will to the extent practicable remove any visible hazardous materials. . . . These materials will be stored . . . and transported off-site for processing at permitted facilities." The first concern the Council has is with the lack of specificity as to how much of the hazardous waste at a minimum the facility must remove. I suspect that what DEP considers "to the extent practicable" is much different than what the operators consider to "the extent practicable". The Council suspects that almost no hazardous will be removed unless this language is made more specific. There are other statements throughout Appendix F with regard to hazardous materials, batteries, and recyclables. The Council is also concerned because there is no mention of which specific facilities these materials will be transported to. In the interest of the environment, DEP and the public should be aware of where HMERRF is shipping the undesirable waste. Hazardous wastes and recyclables should enter a facility that is in compliance with DEP's laws and regulations. The public needs assurance that the materials are handled in the best possible way to ensure environmental protection and public health and safety. A common concern in the community is whether or not the recyclable materials actually are recycled, and this concern extends to the HMERRF's intentions, as well. The Council believes that the community needs notification of where the HMERRF intends to ship hazardous materials, and all recyclables (paper, plastic, all metals, batteries, cardboard, electronic devices, etc.). Additionally, in Appendix F, section II.4.a, the section states that "waste spotters will identify to the extent practicable materials that are recoverable on a cost effective basis." As stated in the oral testimony, use of the front end loader may not be entirely practical to remove small items that fall into these categories, such as kidney dialysis bag found in March 2000.

Appendix F also states that hazardous waste and recyclable items will be stored on site for shipment to permitted facilities. However, Appendix F does not state the period of time the wastes are to be stored.

Also, the applicant anticipates that HMERRF will be obtaining universal and hazardous waste, but did not specify whether the facility would be a Small Quantity Handler of Universal Waste or a Large Quantity Handler of Universal Waste as specified in 40 CFR 273 and 25 Pa. Code 266.

The method that will be used for keeping records of handling and storing universal and hazardous wastes are not discussed.

Finally, with regard to hazardous waste, the applicant does not state what types of storage will be utilized for the hazardous and universal wastes. Mercury containing devices, for example, should not be stored in a metal container because of potential leakage through seams of metal containers and reaction with certain metals. Also, certain hazardous chemicals should not be stored in the same receptacle with other hazardous wastes. The application does not address the needs for different storage containers of hazardous and universal waste.

The Council urges DEP to further investigate the procedures of the facility and ensure that the facility is aware of the storage and handling requirements of Universal and Hazardous wastes.

The Council is concerned that the HMERRF will not adequately advertise the drop off days at the facility for bulk waste collection under Appendix F, Section II.4.a, nor will it adequately advertise the fact that it has a Recycling Drop Off center on site. As a four-year resident of Harrisburg and environmental activist who looks for opportunities to recycle and encourage others to do so, this is the first time I have heard of this, though Appendix F states this system is already in place. Again, the Council is not confident that the HMERRF will adequately promote recycling in the community as an offset to the burdens it is creating to the health of the residents.

Finally, nothing in the permit stated what happens to used or faulty equipment of the facility. Specifically, it is not clear what happens to the air filters used in the incinerator. The Council wishes to know if combustible pieces like air filters are to be entered into waste stream to be burned, or if the pieces are disposed of in some other way.

Again, the HMERRF has violated numerous permit requirements in the past. Clean Air Council and the citizens of Harrisburg insist on a harms/benefits analysis. Many citizens of the community, and the Council, wish the facility to be shut down, as does the Council. In lieu of complete removal, Clean Air Council and the citizens insist on complete compliance with all applicable rules and regulations set forth by DEP. Everyone expects vigorous enforcement of and forced compliance with every detail of the permit.

Thank you for your attention to this matter.