A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 October 1992

SOME BACKGROUND: The incinerator for Montgomery County, to be located in the rural area of Dickerson, was first proposed in the the early summer of 1986. ‘Dickerson area residents were given ONE meeting, a rough draft of a hastily assembled and rudimentary Dickerson site selection report, and two days for comment time on the incinerator.’ [Ref: “Comments from Steven Quarles, 8-9-86.” Quarles was former Chairman of the Montgomery County’s Solid Waste Advisory Committee]. For the last six years the residents and citizen groups in the area have been intensely involved in researching, opposing and litigating this incinerator proposal. In 1990 the State of Maryland issued the incinerator’s air permit. The Sugarloaf Citizens Assoc. and the Dickerson-Beallsville Citizens challenged the State’s permitting decision. The State denied the citizens the right to an Adjudicatory Hearing. The citizens sued the State over this denial. The case went to the highest court in Maryland (Court of Appeals) which ruled that the citizens had the right to a Hearing. The State, anxious to permit the incinerator, was forced to allow an Administrative Hearing. [After this ruling, Maryland’s Governor William Shafer formed a Commission to revise the Administrative Procedures Act -the act which allowed the Montgomery County citizens to have a hearing. The Governor’s Commission is proposing legislation to take away the right of citizens to have contested case hearings!!!!!!! This legislation is expected to be introduced in Maryland’s General Assembly in January 1993.] In 1991 the Washington, D.C.-based Government Accountability Project (GAP) was asked by the Audubon Naturalists Society of the Central Atlantic States and various citizens to represent them at the Administrative Hearing. (The 3 other plaintiffs were: Izaack Walton League represented by Popham, Haik, Schnobrich & Kausman; Sugarloaf Citizens Assoc. represented by Jenner & Block; and the town of Barnsville, represented by local attorney William Roberts.) All were granted status to participate. The 3-week hearing was held in installments between February through April 1992. GAP focused on the health risks via the uptake in the food chain from incinerator pollutants. The Administrative Law Judge (ALJ) was Suzanne Wagner. Montgomery County and the Trash Authority fought for an immediate incinerator permit. Wagner sided with the County and the Trash Authority and decided this case in their favor in a 175 page written decision. Wagner unabashedly favored the County and the Trash Authority throughout the Hearing. (ALJ Suzanne Wagner attended all the hearings of the Governor’s Commission to introduce legislation to eliminate the right of citizens to contested hearings.) After ALJ Wagner’s decision was issued the Izaack Walton League, Sugarloaf Citizens Assoc., Audubon Naturalists Society of the Central Atlantic States, the local town of Barnsville, and other plaintiffs, jointly filed objections [the legal term is exceptions] to ALJ Wagner’s decision. These groups appealed to Maryland’s Secretary of Environment, Robert Perciasepe, who will make the final decision to grant or deny the permit. Perciasepe delegated the case to one of his staff: Timmerman Daugherty. Daugherty held the first hearing on the exceptions on October 1, 1992. The plaintiffs stated that the incinerator represented an unacceptable health risk and also violated the federal Clean Air Act and Maryland’s air pollution regulations. The final decision is expected before the end of the year.

ADMINISTRATIVE HEARING: The transcript of the 3-week Administrative Hearing, held in 1992, is several thousand pages. According to the plaintiffs, ALJ Wagner made many procedural errors during the Administrative Hearing. One error involved a Maryland law called T-BACT (Toxics-Best Available Control Technology). During the Hearing, Judge Wagner would not allow the plaintiffs to talk about T-BACT, stating that the Adjudicatory Hearing was not the proper forum. But in her 175-page decision, Wagner ruled against the plaintiffs on T-BACT stating they presented no evidence to support their claims on that issue. Indeed, the plaintiffs were told during the Hearing by ALJ Wagner that they could not discuss T-BACT. Ogden Martin was not a party to the Administrative Hearing, as it was Montgomery County and the Trash Authority who were the ones to defend Ogden’s project using taxpayer money. GAP subpoenaed the records of Ogden Martin’s compliance history and their dioxin emission records. The court refused to honor the subpoena. Ogden Martin refused to give them voluntarily, even though they alleged a good compliance record. Ogden’s Jeffrey Hahn also alleged that dioxin limits would be very low. When asked to supply data to support Hahn’s allegation, Ogden Martin refused. The Judged allowed Ogden Martin to submit the data, but they did not submit it. GAP stated that such denial could only infer that Ogden didn’t have such data. In response to GAP, Ogden submitted some data. Of the ten facilities Ogden referenced for low dioxin emissions, they submitted evidence on only one - and this was old data. Ogden failed to comply with the request and they failed to support their allegation.

** Kay Jones, a witness for the pro-incinerator forces, stated at the Administrative Hearing that he personally quality-controlled the Health Risk Assessment (HRA) for Montgomery County’s proposed incinerator. Jones was Roy F. Weston’s key consultant to this project. (Since then Jones left Weston to form Zephyr Consulting in Seattle, WA.) GAP introduced a study by the Maryland Dept. of Natural Resources that stated fish from local farm ponds would be highly polluted with dioxin, mercury, PCBs and arsenic from the proposed incinerator. Kay Jones tried to rebut the pond risk analysis. Jones said there were no ponds in the area. Kay Jones, who did the risk assessment, missed the fact that there are fish ponds in the area. GAP asked Kay Jones to produce the Health Risk Assessment. Jones replied that he did an oral one, not a written one. (Weston’s initial risk assessment did not include ponds and Jones was brought in to do a new analysis. That later analysis was done orally.) GAP asked, and the Judge ordered, Jones to produce his notes. GAP asked Jones what bio-concentration factor he used for mercury in fish. Jones replied: 5,500. The documents and experts that GAP introduced in the Hearing estimated a bio-concentration factor of 100,000 or more for mercury in fish. Jones was off by a factor of 20 or more! Jones admitted he did not know what the current literature shows as bio-concentration factors. **A copy of the 1988 version of the HRA was submitted into evidence during the trial. The air modeling data that was attached to this HRA was titled Montgomery County, Pennsylvania, not Montgomery County, Maryland. When confronted, Jones said it was a typographical error. But in a foot note of the air modeling data, Dravo was cited. Dravo were the builders of the 1,200 tpd Montgomery, Pennsylvania incinerator. Jones then stated that he did not have an explanation. Kay Jones was also involved in preparing a HRA for the incinerator in Montgomery County, Pennsylvania, at the same time he was involved in the HRA for the incinerator in Montgomery County, Maryland. The concerned citizens are left wondering which data Jones used for their incinerator. At the Oct 1, 1992 hearing, GAP pointed out that the data to support the Montgomery County, Maryland, HRA wasn’t the right data. The attorney’s for the Waste Authority, Piper & Marbury, said that it was and that the air modeling data titled Montgomery, Pennsylvania was a typo and stated that it appeared only on one page. On rebuttal, GAP pointed out that there were 10 consecutive pages titled Montgomery County, Pennsylvania. **The original HRA estimated how much dioxin would be emitted from the incinerator by calculating a total of Tetra through Octa dioxins and furans. Weston’s number was 48 nanograms per cubic meter of tetra through octa dioxins, for a 2,200 tpd incinerator. EPA came out with new performance standards after Weston’s HRA. EPA’s new standards would only allow 30 nanograms per cubic meter, not the 48 estimated by Weston. Weston’s HRA would allow them to emit more dioxin than allowed by law. Kay Jones took the stand and said the plaintiffs misunderstood, that the dioxin estimate also included tri dioxins and furans. GAP pointed out that in the HRA’s own appendix it clearly stated the estimate was calculated on Tetra through Octa. Jones then said that was a typographical error. GAP pointed out that there was paragraph after paragraph in the HRA that substantiated the dioxin estimate was for octa through tetra only. Jones eventually stated that it didn’t matter since it was the toxic equivalent factors that mattered the most.

Witnesses for Ogden Martin: Kay Jones, Jeffrey Hahn and Joe Seckar. Seckar is a toxicologist for Roy F.Weston. At the Administrative Hearing Seckar said it wasn’t important to look at existing body burdens for dioxins, because they were negligible. GAP asked Seckar what the existing negligible body burdens for dioxin were. Seckar replied: I don’t know.

OGDEN MARTIN GETS $6 MILLION FROM COUNTY TO DISAPPEAR FOR 9 MONTHS: In July 1992 the County put a nine-month freeze on the incinerator project. The County said it needed time to reassess the economic viability and finances of the project and to reassess the decreasing waste stream situation. The County and Ogden Martin held many secret meetings. Soon after, the County announced that they paid Ogden Martin $6 million. The $6 million deal with Ogden Martin: if the incinerator is not permitted Ogden gets to keep the $6 million. If the permit is approved the $6 million will shift to contract.

Transcripts and expert witness testimony available from: Mick Harrison or Richard Condit, Government Accountability Project, 810 First Street, NE, Suite 630, Washington, DC 20002. Tel: 202-408-0034. Fax: 202-408-9855. GAP is a non-profit, public interest, government watchdog. GAP started up in 1977 to assist environmental whistleblowers and citizens who want to enforce environmental laws in protection of their rights. They also represent other government & industry whistleblowers

FOR MORE INFORMATION CONTACT: BEV THOMS, Tiewyan Farm, 21700 Big Woods Road, Dickerson, Maryland 20842. Telephone: 301-972-7318.