In the Matter of: : WASTE TECHNOLOGIES INDUSTRIES : Case 93-M-0589 EAST LIVERPOOL, OHIO : Applicant : REPORT AND RECOMMENDATION
This matter comes before the Board upon the receipt of an application for a permit modification from the applicant, Waste Technologies Industries (WTI) for the East Liverpool, Ohio, hazardous waste facility. The Applicant was represented by Messrs. Charles H. Waterman III & Frank Merrill, of Bricker & Eckler, Columbus, Ohio. The Staff of the Ohio EPA was represented by Messrs. James O. Payne, Jr. and J. Gregory Smith, Assistant Attorneys General, Columbus, Ohio. The Mayor of East Liverpool, Ohio was represented by Mr. G. Thomas Rodfong, East Liverpool, Ohio. Intervenor Ohio Environmental Council (OEC)was represented by Ms. Dixie Floyd, Pataskala, Ohio and Intervenor Save Our County (SOC) was represented by Mr. William C. Martin, Jackson, Ohio. The County Commissioners of Columbiana County were parties to this proceeding by statute and were represented by Mr. Robert Herron, Prosecuting Attorney. The Columbiana County Commissioners did not, however, actively participate in this matter.
1. The original permit in this matter was issued to a predecessor of the present WTI partnership on April 27, 1984, by the Hazardous Waste Facility Board. The Board issued to WTI a Hazardous Waste Facility Installation and Operation Permit (Board Permit No. 02-15-0589). The permit was for a hazardous waste incinerator to be located at 1250 St. George St., East Liverpool, Ohio. (See Staff Exhibit B).
2. This original permit was revised and reissued by the Director on December 18, 1991, and was again revised and reissued on November 6, 1995. (Staff Exhibits A, C; Stipulations 2, 3)
3. Waste Technologies Industries (WTI) partnership was formed on July 21, 1981, by the following corporate partners and with the following respective shares: Von Roll America, Inc., Twenty percent (20%); Waste Technologies, Incorporated, Thirty percent (30%); Energy Technology Company, Thirty percent (30%); and Koppers Environmental Corporation, Twenty percent (20%) (CD 00: Staff Exhibit I).
4. In addition, as of June 21, 1981, the corporate partners of WTI were themselves owned as follows: Von Roll America, Inc. was owned by Von Roll AG; Waste Technologies, Incorporated was owned by Stephens, Inc.; Energy Technology Company was owned by Mustang Fuel Corporation; and Koppers Environmental Corporation was owned by Koppers Company, Inc. (CD 00; Staff Exhibit I).
5. As of June 22, 1990, Von Roll America, Inc. became the sole, One Hundred percent (100%) owner of the four corporate partners of WTI. (Staff Exhibit I)
6. Since that time, the directors of Von Roll America, Inc. have also served as the directors of each of the four corporate partners of WTI. In addition, the President, Vice-president, and Secretary of Von Roll America, Inc. have been the President, Vice-president, and Secretary, respectively, of each of the corporate partners of WTI. (Staff Exhibit I; Testimony Sigg, Hearing Transcript Pages 48-52)
7. On June 18, 1993, the Ohio Attorney General transmitted to the Director of the Ohio EPA ("Director") an investigative report prepared by the Attorney General's Environmental Background Investigation Unit concerning the WTI facility. This report was prepared pursuant to the authority spelled out in Ohio Revised Code Sections 3734.40 to 3734.47. (See Staff Exhibits E and I)
8. By letter dated June 30, 1993, the Director of the Ohio EPA, presumably based upon the investigative report of the Ohio Attorney General's Environmental Background Investigation Unit, requested that WTI submit a revised Part A Permit Application and a written permit change request (PCR) which would reflect the ownership changes discussed above and which would indicate the addition of Von Roll America, Inc. as the owner and operator of the WTI Hazardous Waste Facility Permit which were reflected in the Attorney General's Investigative Report. (Staff Exhibit E)
9. Prior to the June 30, 1993 request by the Director, WTI had not submitted a permit change request (PCR) regarding any of the changes or modifications to the ownership structure of WTI which were indicated in the Investigative Report and which were discussed above.
10. By letter dated September 21, 1993 the Director of the Environmental Protection Agency transmitted to the Hazardous Waste Facility Board a number of documents related to this permit change request. (Staff Exhibit H) These documents included a transmittal letter dated September 21, 1993; a permit change request dated July 16, 1993; an amended PCR letter dated July 30, 1993; two (2) copies of the Ohio Attorney General's Investigative Report, one redacted and the other un-redacted, both dated June 18, 1993; and the Applicant's Disclosure Statement, time-stamped as of May 14, 1990. (See Staff Exhibits G, H, and I)
11. The record demonstrates that at all times relevant to this proceeding, the day-to-day operations of the facility were being conducted by the Applicant through its on-site employees and by employees of the managing general partner of Applicant, Von Roll (Ohio) Inc. through its on-site employees. (Testimony Sigg, Hearing Transcript pgs. 34-35 & 90)
12. As part of this process and pursuant to Ohio Administrative Code Section 3734-1-12(A)(1) the Applicant filed with this Board its Demonstration of Siting Criteria with a statement of anticipated environmental impact and a map of the facility on January 13, 1994. (CD 24, 25)
13. Also, pursuant to Ohio Revised Code Section 3734.05 and the Ohio Administrative Code Section 3734-1-16, a Public Hearing was held on February 16 and 17, 1995. Appropriate public notice of the Public Hearing was given on December 19, 1994, as called for in OAC Section 3734-1-15. A Responsiveness Summary of the Hearing was submitted subsequent to the Public Hearing.
14. On October 28, 1996, an Adjudication Hearing was held pursuant to continuance of the initial hearing scheduled for January 13, 1993. All parties to the proceeding were represented by counsel.
15. The question of what issues are involved and may be considered in the present proceeding is of major significance and is itself a key issue in this case.
16. As required by Section 3734-13 of the Administrative Code, the Staff of the OEPA and the Intervenor Save Our County (SOC) submitted statements of disputed issues under Section 3734.05 which the parties contended were involved in the case. Intervenors raised a number of complex and intertwined, jurisdictional and legal questions in their statement of disputed issues. In addition, there were a series of replies and responses to these issues by all parties to the proceeding. (See CD 66, 68, 69, 79, 80, 81, 82, 89, 94, 99)
17. A ruling by the Hearing Examiner on the specification of disputed issues was made on May 5, 1995. While there is no need to repeat all of it here, in relevant portion, the ruling held that where the issue in a case involves only changes in ownership:
These criteria (ie. the siting criteria contained in ORC 3734.05(D)(6) (b, e, and f)) are the ones most likely to be affected by ownership changes. This is not a fixed, intractable rule however. Where the record or the parties raise or demonstrate proper issues affecting any of the criteria, this Board has the duty and the authority to hear and decide the question. (CD 100 at pg 6).
In general, where a change in ownership affects the siting criteria, it is the duty of the Board to determine whether the criteria will be met after the change. In making its determination, the Board is not limited to narrowly reviewing the impact of the new ownership with regard to only their financial viability. Where there is a compliance history of both a transferor and a transferee, the history of both may be relevant and material to consideration of a permit modification. Where ownership relationships are complex and their consequent legal ramifications are complex, these relationships may themselves become part of a disputed issue where the facts or evidence warrants.
(CD 100, pg 7)
18. The three siting criteria referred to above which are contained in Section 3734.05(D)(6) and which are involved in the present case are:
(b) That the facility complies with the director's hazardous waste standards adopted pursuant to section 3734.12 of the Revised Code;
(e) That the facility will comply with Chapters 3704., 3734., and 6111. of the Revised Code and all rules and standards adopted under those chapters;
(f) That if the owner of the facility, the operator of the facility, or any other person in a position with the facility from which he may influence the installation and operation of the facility has been involved in any prior activity involving transportation, treatment, storage, or disposal of hazardous waste, that person has a history of compliance with Chapters 3704., 3734., and 6111. of the Revised Code and all rules and standards adopted under those chapters, the "Resource Conservation and Recovery Act of 1976," 90 Stat. 2806, 42 U.S.C.A. 6921, as amended, and all regulations adopted under it, and similar laws and rules of other states if any such prior operation was located in another state that demonstrates sufficient reliability, expertise, and competency to operate a hazardous waste facility under the applicable provisions of Chapters 3704., 3734., and 6111. of the Revised Code, the applicable rules and standards adopted under those chapters, and terms and conditions of a hazardous waste facility installation and operation permit, given the potential for harm to the public health and safety and the environment that could result from the irresponsible operation of the facility.
19. Pursuant to agreement of the parties (See CD 27), the Staff of the Ohio EPA have filed with the Board from time-to-time throughout this proceeding, periodic compliance history submissions, supplementing the record and documenting and summarizing the facility's compliance with the various laws and regulations governing its operations and Applicant's responses. (CD 33, 40, 42, 47, 54, 56, 57, 62, 65, 77, 117, 190, Staff Exhibits J through Y)
20. Pursuant to Revised Code Section 3734.05(D)(6)(f), the compliance history of Von Roll America is clearly relevant and material to the review of the application here to determine whether this history "... demonstrates sufficient reliability, expertise, and competency ..." to operate the facility in compliance with the relevant laws and regulations and permit conditions, as is required under this Section.
21. The overall record in this case demonstrates close, changing, and intertwined legal relationships between Von Roll America and the other partners. In addition, the facility operation by Applicant and the common directors between all of them supports and warrants a review of the compliance history of all entities to the partnership as well as the directors and officers involved in these relationships to determine if the appropriate siting criteria will be met. (CD 00; Staff Exhibit I; Testimony Sigg, Hearing Transcript 34-52)
22. That being said, a review of the compliance history in the record and submitted by the Staff in this case does not demonstrate a history of significant non-compliance. While the submittals do present a number of violations, they are, in general, best described as minor in nature. Also, the record presented here demonstrates that the violations noted were generally remedied or dealt with satisfactorily. Importantly, no evidence has been introduced or pointed out the would indicate otherwise regarding the compliance history. (See Staff Exhibits J--T)
23. Likewise, the compliance history and the record in this case does demonstrate a requisite degree of reliability, expertise, and competency as is necessary and required under the law to satisfy the siting criterion of 3734.05(D)(6)(f). The record in this proceeding demonstrates that, if operated in accordance with the terms and conditions of its permit, the facility will operate in compliance with appropriate hazardous waste standards as required. In addition, no evidence relevant to these issues has been presented in this case which would indicate otherwise. (See Testimony Sigg, Hearing Transcript, pp 35-- 46; Staff Exhibits J--T)
24. The record here demonstrates that the appropriate siting criteria of Section 3734, namely subsections 3734.05(D)(6)(b, e.&f), have been met and that the operator of the facility meets the requirements of those criteria.
25. As mentioned above, Intervenors "Specification of Disputed Issues" contained a number of complicated points which are probably best described as questions. (See CD 66) These disputed issues were the subject of a previous ruling and need not be repeated here. (See CD 100) While there is no doubt that the questions raised by Intervenors as disputed issues are significant legal and jurisdictional matters, they do not relate to nor are they relevant to the very narrow and specific permit modification being sought here. Nothing has been presented in this case which demonstrates that the "issues" propounded by Intervenors are the result of the ownership change involved here, either directly or indirectly, or that they are reviewable as a result of an ownership change.
26. While the Revised Code is certainly not a picture of clarity regarding the process of permit review and issuance, it is quite explicit regarding the scope this Board's authority in the review of a permit modification request. Section 3734.05(I)(4)(a) (since modified) states in part:
(4)(a) The hazardous waste facility Board shall approve or disapprove an application for a modification, or that portion of a permit renewal application that constitutes a modification application, of a hazardous waste facility installation and operation permit in accordance with division (D) of this section. In approving or disapproving the renewal portion of a permit renewal application containing a modification application as provided in division (H)(4) of this section, the Board shall apply the criteria established under division (H)(2) of this section. No aspect of the permitted facility or its operations that is not being modified shall be subject to review by the Board under division (D) of this section. (Emphasis added)
27. Clearly in the case before it, the Board is constrained to review only the "ownership change" aspect of the modification application presented here. Issues outside the scope of such a review are not within the clear limit of authority specified in the Code. The limitations placed on the present review would require an act of the legislature to broaden the scope of this Board's authority to include the review of the issues proposed by Intervenors. The parties have not presented any evidence nor authority upon which this Board can expand the scope of review. Likewise, this Hearing Examiner has been unable to find any such basis or authority.
28. Similarly, the Intervenors have sought to introduce evidence and argument regarding the alleged criminal activity of a Von Roll company or its employees, including the sale of contraband materials in violation of trade laws. These issues are, of course, matters that should be reviewed and dealt with by the proper authorities. However they are issues outside the scope of the present application process. Section 3734.05(D)(6)(f) again sets a narrow path of review authority that does not include matters outside the scope of the siting criterion. These potentially important issues are matters to be considered for separate action by the appropriate authorities however they are not matters which are involved in or which can be addressed in this action. (Testimony Sigg, Hearing Transcript pgs. 128 - 158)
OPERATIONAL AND DESIGN ISSUES
29. The Intervenors, at hearing, also sought to introduce evidence regarding operational matters and issues which are probably most accurately described as "facility design" matters. These issues are, again, certainly of some significance and are not matters that should be disregarded or minimized. However they are not matters that are within the purview of the present ownership modification case. Nothing presented in this case, at the hearing or in the pleadings, has demonstrated a basis to expand the scope of the issues beyond the siting criteria of 3734.05(D)(6)(b, e, and f) of the Revised Code. Thus the evidence was not permitted.
30. Within the explicit and narrow constraints of Revised Code Sections 3734.05(D)(6) and 3734.05(I)(4)(a), these aspects of the WTI facility are not subject to review in the present proceeding. The authority and jurisdiction to evaluate and resolve these issues lies within the scope of the Ohio EPA and the Ohio Attorney General.
Based upon the above, it is the recommendation of the Hearing Examiner that the application for modification of the Ohio hazardous waste facility installation and operation permit herein, requesting a transfer of the permit to Von Roll America, Inc be approved. As suggested by Applicant and Staff of the OEPA, the approval should be subject to the following conditions:
2. Within sixty (60) days of permit issuance, Von Roll America, Inc must submit adequate proof of financial assurance to cover liability of the facility and to demonstrate compliance with all Ohio laws and regulations regarding financial assurance for liability for the facility.
3. Within sixty (60) days of permit issuance, Applicant shall take all necessary and appropriate steps to request necessary modification and recognition of the permit transfer with the US EPA and to apply for transfer of other permits necessary or required by the transfer under Ohio or federal law.