Allentown Residents for Clean Air and PA Waste Industry Comments Skewer DTE Incinerator Air Permit


The Pennsylvania Waste Industries Association (PWIA) and environmental health advocates usually don’t agree on much, but they both agree that pollution permits should be denied to the trash and sewage sludge incinerator planned for Allentown by Delta Thermo Energy (DTE).

Allentown Residents for Clean Air (ARCA) members have been calling the proposed plant an incinerator, not a “waste-to-energy” facility, even citing the fact that DTE’s air pollution permit application lists them as an incinerator.  The waste industry now concurs.  In 37 pages of comments, they cite in detail how DTE’s facility is a solid waste incinerator under state and federal law.  The comments were filed, as were comments by ARCA members, as part of the comment period on the air pollution permit, which ended on Monday.  This, and a proposed waste management permit, are still pending approval by the PA Department of Environmental Protection (DEP).

PWIA calls the project “meritless” and states that the proposed air pollution permit “is incomplete, inaccurate, and a blatant attempt to circumvent clearly applicable requirements” of the Clean Air Act.

PWIA documents that it’s an incinerator and that the facility’s main purpose is waste disposal, not energy generation.  They demonstrate this based on state and federal law as well as the fact that DTE’s revenues would come “almost exclusively from accepting waste for disposal, not from selling electricity.”  In fact, the electric generation would be so minuscule, they argue, that no rational investor would invest even 5% of what DTE says the project would cost.

PWIA points out that Delta Thermo’s proposed facility is considered a “solid waste incineration unit” for purposes of the federal air pollution laws, which the state must enforce.  “Simply calling the project an ‘Energy Production Facility’ does not make it true.  The purpose of this facility is waste disposal.”

PWIA claims that “if this facility is built and operated as allowed under the proposed [air pollution permit], it will be the dirtiest waste facility incinerating waste in the state.”

Echoing ARCA’s concerns, PWIA states that the proposed air permit has a “significant omission” in not doing anything to control dioxin pollution.  Dioxins, made famous as the contaminant in Agent Orange, are the most toxic group of man-made chemicals known to science, and are primarily released from incinerators.  PWIA points out that “no emission estimates, control technology, or monitoring requirements are included in the [air pollution permit] Application for dioxins,” which they call “powerful carcinogens.”  They also call the permits’s failure to analyze mercury emissions a “significant error given the serious potential health effects from these pollutants.”  The Allentown Clean Air Ordinance that community members are trying to get on the ballot would require new incinerators in the city to continuously monitor dioxin, mercury and other pollutants, and would set strict emissions limits on new incinerators to protect air quality.

ARCA’s comments criticize how the proposed air pollution permit allows DTE to operate without knowing what is coming out of their smokestack on a daily basis.  Continuous monitoring technology is only required for one pollutant, a respiratory irritant known as nitrogen oxides.  Only 14 other pollutants must be monitored, and just once within the first six months of operation.  ARCA’s comments point out: “Details on any further testing are not spelled out in their permit.  Even annual testing would be inadequate.  It is like having a speed limit, but allowing drivers to drive with no odometer.  A speed trap would be set just once a year, there are signs warning ‘speed trap ahead’ to warn drivers to slow down, and the driver’s brother runs the speed trap (the companies do their own testing).  In reality, incinerators are ‘speeding’ many other days of the year, with excessive emissions during startup, shutdown and malfunction times, when testing is not done.  Regulating air polluting facilities in this manner is inexcusable, especially in the age where continuous testing technology exists and where the data is able to be made available to the public real-time through a website.”

DTE’s permit is based on their assumptions of low pollution emission rates based on 23-year old data from another industry — data that wasn’t even provided to DEP for their consideration in approving DTE’s air pollution permit.  PWIA notes that DTE made excessive claims of confidentiality on large amounts of information, which the DEP ultimately found not to be confidential and released.  PWIA’s comments found that DTE’s failure to meet the minimum requirements for municipal and county notifications “could be construed as part of a larger scheme (improper confidentiality requests, etc.) designed to hide as much of the proposed project as possible from public review and comment.”

PWIA also argues that Delta Thermo is circumventing state regulations through staged permitting.  In 2010, they sought and received a bare-bones air pollution permit as a research and development facility.  This permit lets them construct the facility, but not to sell electricity.  DTE appealed this permit, but abandoned their appeal earlier this year when they sought a normal air permit, in which they listed themselves as a waste incinerator, but claimed to be an energy facility to avoid stricter permit requirements.

PWIA and Allentown Residents for Clean Air (ARCA) members, in separate comments, both made an issue of how the proposed incinerator would be in an “environmental justice community.”  “Environmental justice is the movement’s response to environmental racism — a pattern where polluting industries, including trash and sewage sludge incinerators, are disproportionately located in communities of color,” said Mike Ewall of Energy Justice Network, whose organization studies this issue nationally.  DEP has an environmental justice policy under which companies seeking permits to locate polluting industries in such communities are to trigger extra public participation requirements, including hearings which have been denied in this case.  Instead, DEP promised a hearing and provided just a meeting, which advocates criticize as a sales pitch, rather than a formal proceeding on the record.  PWIA and ARCA both argue that this policy should have been applied and that formal hearings should have been held.



Pennsylvania Waste Industries Association (PWIA) Comments:

Allentown Residents for Clean Air (ARCA) Comments:



p2: not only is this project meritless, but that the underlying Plan Approval Application is incomplete, inaccurate, and a blatant attempt to circumvent clearly applicable requirements

p3: At its most fundamental level, and pursuant to both federal and state law, the proposed project is a waste disposal project. The revenues expected to be generated by this project are almost exclusively from accepting waste for disposal, not from selling electricity. From a rational investor’s perspective, the revenue generated from the 2.3 MW (net) electric output from the facility1 does not justify a capital investment of even 1/20th of what Delta Thermo has publicly said it will cost to build the project. In fact, the revenue stream Delta Thermo will obtain from selling electricity is of such little importance to the overall project that in a submission to the Department dated October 8, 2010, Delta Thermo indicated that “most of the electric power will actually be donated to the City of Allentown for their Waste Water Treatment Plant and a portion will be used internally for DTE’s operations.” Simply calling the project an “Energy Production Facility” does not make it true. The purpose of this facility is waste disposal.

p4: It is incredulous that Delta Thermo attempts to circumvent applicable state and federal requirements by characterizing this project as an “energy production facility”, when this facility will generate significantly less electricity, per ton of waste combusted, than traditional waste-to-energy incinerators that are also subject to much more stringent operating, emission, and monitoring requirements than those proposed in the Plan Approval for Delta Thermo. If this facility is built and operated as allowed under the proposed Plan Approval, it will be the dirtiest waste facility incinerating waste in the state.

* attempted circumvention of the Department’s regulations through staged permitting;
* failure to address Environmental Justice concerns and/or to prepare a risk assessment that calculates the elevated cancer risk to local residents from its proposed operation.

p6 (fn3): Please note that this so-called “Confidential Version” of the Plan Approval Application contained no confidential information whatsoever. See Right-to-Know Appeal, Docket No. AP 2013-1275.

p7: Delta Thermo’s proposed facility is considered a “solid waste incineration unit” for purposes of the Waste-Related Combustion NSPS

p18: Delta Thermo is a solid waste incinerator subject to the Waste-Related Combustion NSPS because it meets the definitional criteria and is not entitled to any exemption.

p21 (fn22): this “energy production facility” will make just 50% of the electricity from a ton of waste than traditional waste-to–energy incinerators, despite the fact that this facility will have higher air pollutant emissions for each ton of waste incinerated.

p21-22: Delta Thermo’s proposed facility is not a “small power production facility.”  Delta Thermo’s previous attempt to characterize its proposed facility as a “small power production facility” in order to circumvent the requirements of Clean Air Act Section 129 and the waste combustion regulations within 40 CFR Part 60 similarly fails.

p24: As reported by the applicant, contaminant levels detected in those samples were highly inconsistent, with the levels of certain contaminants (i.e. cadmium, nickel) ranging by more than an order of magnitude

p24 (fn26): The results for aluminum, antimony, arsenic, chromium, copper, potassium, magnesium, manganese, lead, and zinc analyses also varied by more than a factor of 2. Delta Thermo has also failed to present any analysis as to what percentage of the metals in its proposed “fuel” will be retained in bottom ash following combustion. Instead, Delta Thermo merely recites model ash retention factors from a 1990 seminar hosted by the cement industry.

p25: Approval of the current proposed Plan Approval would allow circumvention of the appropriate permitting procedures required for solid waste combustion units, and would result in approval of a facility that is non-compliant with the Clean Air Act and potentially RCRA.

p28: Delta Thermo has failed to provide the required BAT analysis, is proposing installation of equipment that does not meet BAT requirements, and has miscalculated the PM-10 emission rate from the facility.

p28-9: The highest reported result for most of the parameters was more than double the lowest value. In many instances, the variances were much higher-approximately one-third (113) of all tested parameters had variances between the low and high sample of at least a factor of four, and two parameters varied by more than an order of magnitude. This is not indicative of production of a “fairly consistent product”; it is direct proof that the processed waste is not consistent and is not homogeneous

p29: Pre-control emissions were estimated by using the high values obtained for certain parameters in the laboratory analysis, and then assuming that virtually none of the metals present in the combusted waste are emitted (for seven ofthe nine metals, pre-control emissions were stated as being between 0.44% and 0.04% of the total metal present in the waste stream). The basis for this assumed emission rate is not the effectiveness of the control devices (as these are pre-control estimates), but rather a paper presented at a conference for a totally different combustion technology prepared twenty-three years ago.30 [See Plan Approval Application, Attachment 3-3; a copy of this paper was not provided to the Department in the Plan Approval Application].  The Department has an obligation to ensure that current and accurate emission factors are used to estimate metal, including HAP metal, emissions. Use of a twenty-three (23) year old paper discussing cement kiln emissions is not reliable.

p30: Other than sorting and removing bulky items and some recyclables, this facility will be accepting and incinerating all of the municipal solid waste it receives. Included in the municipal solid waste that the facility receives will be plastics and other chlorinated materials. Chlorine content is a major factor in the levels of dioxins, furans, and dioxin-like compounds (collectively, “dioxins”) that will be produced in the combustion process and emitted by the facility. Dioxins are powerful carcinogens that are regulated as both Hazardous Air Pollutants and as Persistent Organic Pollutants. No emission estimates, control technology, or monitoring requirements are included in the Plan Approval Application for dioxins. This is a significant omission, and regulating and reducing dioxin emissions is an important objective of the Waste-Related Combustion NSPS. There is no discussion or basis setting forth any analysis by the Department for the selection of the dioxin/furan limits in the proposed Plan Approval in any of the Department’s documents, including the undated Permit Review memorandum.

p31-2: Comment #6: Failure to meet the minimum requirements for municipal and county notifications.
While this failure by Delta Thermo could be viewed as “harmless error” given the demonstrated high level ofpublic interest in the project, this error could be construed as part of a larger scheme (improper confidentiality requests, etc.) designed to hide as much of the proposed project as possible from public review and comment.

p33: Failure of Delta Thermo to submit an application for its proposed WTS appears to be in conflict with the Permit Coordination Policy and the Department should not issue this proposed Plan Approval (or any other permit) to Delta Thermo until all required permit applications have been filed with the Department. We also note that the Department will often “hold” completed permits ready to be issued under one Department program until all other permits required for the project are ready for issuance. It is unclear as to why issuance of Delta Thermo’s permits is not being coordinated as such.

p34: Comment #8: Delta Thermo has attempted circumvention of the Department’s regulations through staged permitting.
Delta Thermo has repeatedly attempt to circumvent the proper air permitting processing procedures, in violation of25 Pa. Code§ 127.216. Specifically, the Department approved a Request for Determination (“RFD”) for a “Research and Development” (R&D) facility to be constructed on the Allentown site by Delta Thermo in 2010. Despite various and sundry efforts by Delta Thermo to have the restrictions applicable to R&D facilities lifted in the RFD (including litigation), the Department did not do so and the Environmental Hearing Board dismissed Delta Thermo’s appeal. Delta Thermo freely admits that the facility proposed to be constructed in the pending Plan Approval Application is the same facility approved in the RFD. In its March 29, 2013 Plan Approval Application transmittal letter, Delta Thermo indicates that it believes it can begin construction for this facility, to be operated for commercial purposes, under authority of the RFD that authorizes only R&D operations, despite the fact that it expressly indicates that it has no intention of operating an R&D facility and despite the fact that no plan approval has been issued. To do so is a classic case of circumvention.

p34: According to the Department’s eMap website and the proposed facility’s latitude and longitude (as provided by Delta Thermo in the GIF), the proposed facility is almost perfectly centered in an environmental justice community. There is no indication that the Department or Delta Thermo have followed the public participation procedures in the Department’s Environmental Justice Public Participation Policy, Document No. 012-0501-002 (April 24, 2004) to ensure fair and meaningful involvement of the community, and to otherwise ensure fair treatment -that no group of people, including any racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies. This is true despite the fact that the project at issue involves waste and sludge incineration, a classic example of a so-called “trigger permit” under Department parlance.  Given the high levels of public interest and opposition that exists to this project, as documented in press clippings in the Department’s files, this facility also should have triggered the public participation procedures, from initial application submission.

p35: The dispersion analysis included in the Plan Approval Application does not analyze emissions of mercury or dioxin. This is a significant error given the serious potential health effects from these pollutants.  Just as troubling is the fact that no risk assessment for cancer and non-cancer effects has been required by the Department. Landfill gas-to-energy projects, using much cleaner, proven, and reliable technology, with significantly lower emission rates, have been required to submit dispersion models (far exceeding the limited scope of applicant’s effort) and full-blown risk assessments. The proposed Plan Approval should be denied as environmental justice concerns, including a calculation of the increase in expected cancer rates, has not been performed. This issue is even more troubling given that the applicant has made no effort to include any information relating to its dioxin emissions in the Plan Approval Application.

p36: Finally, we note that Delta Thermo improperly claimed the dispersion analysis, as well as most of its Plan Approval Application, to be confidential business information. The Department ultimately released all of the claimed “confidential” information as it found that none ofthe information was in fact classified as confidential. It is black-letter law that emission information cannot be held confidential by the Department, and Delta Thermo’s multiple attempts to claim the dispersion analysis as confidential, thus avoiding from the affected public an opportunity to review this document, possibly surely hints at what the results of a risk analysis may show.

p36: Conclusion:

Issuance of the proposed Plan Approval would violate the Air Pollution Control Act, the Clean Air Act, and their implementing regulations. The Plan Approval Application that the Department relied upon in preparing the proposed Plan Approval is incomplete, inaccurate, and attempts to circumvent inclusion of clearly applicable requirements. As a result, because the Department was forced to rely upon erroneous information that was supplied in the Plan Approval Application, the proposed Plan Approval does not meet the minimum requirements set forth in 25 Pa. Code§ 127.12b(b), nor the procedural requirements set forth in 25 Pa. Code § 127.43a.

At its most fundamental level, and pursuant to both federal and state law, the proposed project is a waste disposal project. The proposed project would produce half of the energy of traditional waste-to-energy incineration, while being subject to significantly much less stringent emission limits, as well as operating, monitoring and other requirements. PWIA urges the Department, under authority 25 Pa. Code 127.13b, to reject Delta Thermo’s Plan Approval Application.