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American Marine Rail, LLC - Interim Decision, February 14, 2001

Interim Decision, February 14, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1010

In the Matter

- of the -

Application for a Solid Waste Management Facility Permit;
a Tidal Wetlands Permit; a Protection of Waters Permit;
and a Water Quality Certification pursuant to Articles 27, 25 and 15 of
the Environmental Conservation Law and Parts 360, 661 and 608 of Title 6
of the New York Compilation of Codes, Rules and Regulations

- by -

AMERICAN MARINE RAIL, LLC

DEC Project No. 2-6007-00251/00001

INTERIM DECISION

February 14, 2001

Introduction

This Interim Decision relates to appeals from rulings by Administrative Law Judge (ALJ) Helene Goldberger rendered August 25, 2000.(1) The rulings relate to the application of American Marine Rail, LLC ("AMR" or the "applicant") to construct and operate a barge-to-rail solid waste transfer station in the Hunts Point section of Bronx, New York.

AMR's application seeks permits to handle up to 5,200 tons of waste per day that would be brought to the facility by covered barges from marine transfer stations in New York City. Under the project proposal, barges filled with waste from other marine transfer stations would be brought into an enclosed unloading/compactor building. The waste would be removed and placed onto a conveyor belt, then compacted into closed containers. The containers would be driven out of the unloading/compactor building by vehicles known as yard hostlers, which would carry the containers to a rail yard. At the rail yard, a gantry crane would lift the containers from the yard hostlers on to flatbed railcars. See IC, Exh. 6, App. A at 5-6. The containers would be allowed to stand for up to 48 hours before being transported elsewhere by rail to landfills in other states.

The permits needed from the New York State Department of Environmental Conservation ("Department" or "DEC") include, inter alia, a Part 360 solid waste management permit, a Part 661 tidal wetlands permit, a Part 608 protection of waters permit and water quality certification in order to dredge certain waters, and a determination of consistency by the co-lead agencies, DEC and the New York City Department of Sanitation ("NYCDOS") with the State's coastal zone policies and the New York City Waterfront Revitalization Program. Additionally, AMR must seek concurrence on this finding of coastal management consistency with the New York City Department of Planning ("NYCDOP") and the New York State Department of State. AMR also seeks a number of variances.

Procedural History and Relevant Facts

A notice of hearing and complete application was published in the December 29, 1999 and January 5, 2000 editions of the Environmental Notice Bulletin and the New York Daily News. On December 20, 1999, the Department and NYCDOS as co-lead agencies jointly determined under the State Environmental Quality Review Act ("SEQRA") that the proposed project is an unlisted action that will not have a significant adverse effect on the environment, and accordingly, found that no environmental impact statement ("EIS") was required.(2) IC, Exh. 7. A review of the negative declaration reveals that Department staff evaluated the proposed action relative to air quality impacts and determined that the applicable National Ambient Air Quality Standard ("NAAQS") for the relevant criteria pollutants, including particulate matter 10 microns in diameter or less ("PM10"),(3) were not exceeded. IC, Exh. 7 at 12-15. The air quality review involved modeling the proposed exhaust stacks and boiler as point sources as well as simulating as volume sources the transfer activities of the yard hostlers, gantry cranes and tug boats. PM10 fugitive emissions from equipment crossing the rail yard area were also modeled as a volume source. A dispersion model developed by the United States Environmental Protection Agency ("EPA") was employed to measure pollutant concentrations from the aforementioned sources and maximum pollutant impacts were calculated for receptor locations along the project site perimeter. See id; see also IC, Exh. 6, App. J. The results for PM were as follows:

Pollutant Averaging
period
Background
Concentration
(g/m3)
Facility's Predicted
Incremental
Concentration
(g/m3)
Maximum Predicted
Total Concentration
(g/m3)
Ambient Standards
(g/m3)
PM10 24 hour 94 16.0 110.0 150
PM10 Annual 29 2.8 31.8 50

Id. at 14-15; see also IC, Exh. 6 at App. J-11. As the table indicates, for both the "24 hour" and "Annual" averaging periods, when the predicted PM10 emissions for the proposed AMR facility are added to the PM10 background concentration, the PM10 total concentration is considerably below the applicable NAAQS.(4)

The ALJ's Rulings on PM2.5

The applicant, Department staff and NYCDOS appeal the ALJ's ruling that emissions of PM2.5 from this facility should be analyzed as part of an EIS under SEQRA.(5) The ALJ stated that "it would appear imperative in light of the scientific evidence regarding the health effects of this pollutant to prepare an analysis of the potential effects of the emission of PM2.5 from this facility." Rulings at 58. While acknowledging that EPA is the leading authority on PM2.5 effects and the means to address them, as well as the "source of much of the conflicting guidance on this issue", the ALJ recommended that the co-lead agencies' staffs in coordination with AMR seek EPA's "assistance in performing this review" and that the assessment be done as part of the EIS process. Id.

The ALJ stated further that:

the applicant and/or the co-lead agencies must address the contingent use of trucks at this facility which would potentially cause significant impacts with respect to particulate emissions in light of the other truck-based solid waste facilities in the area. At such time, there should be more ambient data as well as additional and clearer guidance from both EPA and the courts with respect to the modeling of individual sources and PM2.5 impacts.

I also recommend ... an annual limit to [truck] use so that any environmental impacts from this source would be lessened. I also recommend that in addition to these conditions, the staff and AMR consider the placement of a monitor in the vicinity of the facility to provide ongoing data on PM2.5 in the area. ... There should be careful consideration of the placement of this monitor in order to ensure that it does reflect the conditions that are borne by the population in this community. Rulings at 58-59.

Appeals

Appeals of the ALJ's rulings primarily concern the ALJ's rulings related to PM2.5. Appeals on this issue were brought by the applicant, Department staff and NYCDOS on or about September 27, 2000. A letter from Environmental Defense ("ED"), Natural Resources Defense Council ("NRDC") and New York Lawyers for the Public Interest ("NYLPI") urging affirmance of the ALJ's findings as to PM2.5 was also received on or about that date. A reply brief on behalf of ED, NRDC and the New York League of Conservation Voters ("LCV") was subsequently received on or about October 13, 2000, and a separate response was received on or about that date from NYLPI. Later in October, a letter jointly signed by ED, NRDC and NYLPI and a response to that letter from AMR were also received. These two letters concerned the relevance of a recent judicial decision, Spitzer v. Farrell, Index No. 400365-00, (Supreme Court, New York County, October 12, 2000), which considered whether New York City's failure to have its consultant perform a PM2.5 analysis relative to truck traffic carrying solid waste via the Holland Tunnel violated SEQRA and the City's own set of procedures pursuant to SEQRA.

Department staff also appealed the ALJ's finding that solid waste transfer stations are "subject to Subparts 360-11 and 360-1 only" and that Subpart 360-6 regarding permitting requirements for the storage of liquid waste "is inapplicable" to transfer stations. Rulings at 39. On or about October 13, 2000, the New York City Environmental Justice Alliance ("NYCEJA") submitted a reply to Department staff's appeal, essentially joining their appeal of the ALJ's ruling as to the applicability of Subpart 360-6 to transfer stations. In addition, NYCEJA appealed the ALJ's specific finding that Subpart 360-6 did not apply to AMR's project; Department staff did not contest the latter finding.

Standard of Review

Review of a lead agency's determinations under SEQRA is limited to "whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion." Akpan v. Koch, 75 N.Y.2d 561, 570 (1990); Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416; CPLR 7803[3]. In assessing an agency's compliance with SEQRA, a court does not "weigh the desirability of [the] action, choose among alternatives" (Jackson, 67 N.Y.2d 524, 529 (1989)), or "determine what, if any, adverse environmental effects may result from it." Har Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, 529 (1989). Under SEQRA, agencies have been given "considerable latitude in evaluating environmental effects and choosing among alternatives." Jackson 67 N.Y.2d at 417.

The crux of the review is to determine whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination. Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 688 (1996); Har Enterprises, 74 N.Y.2d at 529; H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 232 (4th Dept. 1979). Additionally, an agency's compliance with its substantive SEQRA obligations is subject to a "rule of reason" that relieves it of the obligation of examining every conceivable impact, mitigation measure, or alternative; the rule is one of reasonableness and balance that permits the agency the flexibility necessary to respond to varying circumstances. Gernatt, 87 N.Y.2d at 688; Jackson, 67 N.Y.2d at 417; Akpan 75 N.Y.2d at 570. In sum, where there is a reasonable or rational basis in fact for the administrative determination, the determination must be upheld. Pell v. Board of Education, 34 N.Y.2d 222, 230-231 (1974).

Discussion

Pursuant to sections 108 and 109 of the federal Clean Air Act, EPA is required to promulgate health-based NAAQS for each air pollutant identified by the agency as meeting certain statutory criteria. See, 42 U.S.C. §§ 7408-09. For each pollutant, EPA sets a "primary" standard - a concentration level "requisite to protect the public health" allowing for "an adequate margin of safety" - and a "secondary" standard - a level "requisite to protect the public welfare." Id. § 7409(b). NAAQS have been established for six criteria pollutants; sulfur dioxide, nitrogen dioxide, carbon monoxide, lead, ozone and particulate matter ("PM"). The latter pollutant is the "generic term for a broad class of chemically and physically diverse substances that exist as discrete particles (liquid droplets or solids) over a wide range of sizes." Wooley, Clean Air Handbook, at 1-14, n. 15 (9th ed. 2000).(6)

The first PM standard was issued in 1971. See 36 Fed. Reg. 8186. In 1987, the NAAQS for particulate matter was revised to address PM10 particles, which are particles measuring 10 microns or less in diameter and often referred to as coarse particulates. See 52 Fed. Reg. 24663; 40 C.F.R. § 50.6(c).

In 1997 EPA promulgated final rules revising the primary and secondary NAAQS for particulate matter and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38,652 (1997); NAAQS for Ozone, 62 Fed. Reg. 38,856 (1997). The 1997 PM rule targeted "fine" particulate measuring 2.5 microns or less in diameter. Major components of fine particles include sulfate, strong acid, ammonium, nitrate, organic compounds, trace elements (including metals), elemental carbon and water. See Air Quality Criteria for Particulate Matter, USEPA, Vol 1, p.1-3, April 1996.

In May 1999, the District of Columbia Circuit for the United States Court of Appeals held that the construction of the provisions of the Clean Air Act on which EPA relied in promulgating the NAAQS for PM and ozone constituted an unconstitutional delegation of legislative power. American Trucking Assoc. V. EPA, 175 F.3d 1027 (D.C. Cir. 1999) cert. granted, 2000 WL 175256 (May 22, 2000). In its decision, the court also invalidated the new particulate regulations and remanded the proposed regulations to the agency for further consideration. Specifically, the court agreed with petitioners that "retention of the PM sub 10 indicator simultaneously with the establishment of the new fine particulate indicator is unsupported by evidence in the record and arbitrary and capricious." Id. at 1053. The court found that EPA lacked a rational basis in promulgating NAAQS for fine particulate PM2.5 in that the latter was already being regulated under PM10:

We cannot discern exactly how a PM sub10 standard, instead of a PM sub10-2.5 standard, will work alongside a PM sub2.5 standard to regulate only the coarse fraction of PM sub10. EPA provides no explanation to aid us in understanding its decision. In fact, as the example above indicates, it is the very presence of a separate PM sub2.5 standard that makes retention of the PM sub10 indicator arbitrary and capricious. Far from working in conjunction to regulate coarse particles, PM sub10 and PM sub2.5 indicators, when used together, lead to "double regulation" of the PM sub2.5 component of PM sub10 and potential underregulation of the PM sub10-2.5 component since the amount of PM sub10-2.5 permitted will always depend on the amount of PM sub2.5 in the air. Id. at 1054.

Particulate air pollution is a serious public health problem and the court took care not to diminish EPA's valid concern over the public health impacts of fine particulates:

The numerous epidemiological studies appearing in this record, some of which EPA also used to support the 1987 NAAQS, easily satisfy the standard articulated in the statute and emphasized repeatedly in decisions of this court. Covering diverse geographic locations with wide varying mixes of air pollution, the studies found statistically significant relationships between air-borne particulates signified by a variety of indicators and adverse health effects. Given EPA's statutory mandate to establish standards based on "the latest scientific knowledge," 42 U.S.C. §§7408(a)(2), 7409(d), the growing empirical evidence demonstrating a relationship between fine particle pollution and adverse health effects amply justifies establishment of new fine particle standards. Id. at 1056.

The record indicates that fine and coarse fraction particles smaller than 10m can penetrate and deposit in the tracheobronchial and alveolar regions of the lung, and adversely affect respiratory and cardiovascular functions. See IC, Exh. 68, Review of the National Ambient Air Quality Standards for Particulate Matter, Policy Assessment of Scientific and Technical Information, OAQPS Staff Paper, USEPA, July 1996 V-8-11. Epidemiological studies show "consistent positive associations of exposure to ambient PM with health effects, including mortality and morbidity. ... Individuals with cardiovascular or pulmonary disease, especially if they are elderly, are more likely to suffer severe health effects (mortality or hospitalization) related to PM exposure than are healthy young adults. Children and asthmatics are also susceptible to certain PM effects, e.g., increased respiratory symptoms and decreased lung function." Air Quality Criteria for Particulate Matter, supra, at 1-20.

PM2.5 Analysis

The applicant, Department staff and NYCDOS contend that the ALJ erred by directing that the PM2.5 emissions of the AMR proposal be considered under SEQRA. ED, NRDC, NYLPI and LCV ("Petitioners") assert that the ALJ properly directed a PM2.5 analysis for this facility. Upon reviewing the applicable law and facts of this case, I find that the ALJ's rulings concerning PM2.5 should be reversed.

Preliminarily, Department staff's consideration of the PM issue for this proposed barge-to-rail solid waste transfer station as set forth in the negative declaration was not irrational or an error of law. See 6 NYCRR 624.4(c)(6)(i)(a). The record indicates that Department staff took the requisite "hard look" at the issue of the impacts of particulate matter from this project according to the applicable NAAQS PM10 standards (40 C.F.R. § 50.6), and provided a "reasoned elaboration" for its findings. See IC, Exh. 7 at 12-15. Department staff's decision to turn to the PM10 standard for guidance was rational and consistent with commissioner decisions that recognize the consideration of environmental standards in evaluating whether project impacts are significant. See Matter of Seaboard Contracting & Material, Inc., Decision of the Commissioner, June 5, 1990 (NAAQS for total suspended emissions used as a threshold in reviewing air quality impacts of sand and gravel mine); see also Matter of Oneida County Energy Recovery Facility, Decision of the Commissioner, April 5, 1983; Matter of Pyramid Crossgates Co., Decision of the Commissioner, June 4, 1981.

In any event, federal and state court decisions concerning PM2.5 do not compel imposing upon the applicant the requirement of performing a PM2.5 environmental review for the project at issue. As discussed earlier, the proposed PM2.5 federal regulations are not in effect. See American Trucking Ass'ns v. EPA, supra. The D.C. Circuit Court remanded these PM standards to EPA primarily on the grounds that EPA's setting of separate PM limits for both PM10 and PM2.5 was arbitrary. Id. at 1054. Most recently, in a New York Supreme Court decision rendered after the ALJ's rulings, a court held that the absence of an analysis of the potential PM2.5 impacts of an interim waste export plan did not violate SEQRA. See Spitzer v. Farrell, supra. In Farrell, petitioners alleged a negative declaration issued by the New York City Department of Sanitation was arbitrary and irrational because of the City's failure to have its consultant perform a PM2.5 analysis on the diesel truck traffic that would occur under the export plan. In holding that the City's PM10 analysis complied with SEQRA and CEQR, and that the PM issue did not need to be remanded to the agency for "mitigation considerations", the court succinctly stated:

In the absence of an EPA-approved model for calculating PM2.5 emissions and little to no guidance from the EPA in analyzing PM2.5 impacts under SEQRA or CEQR, DOS appropriately limited its review to the EPA's PM 10 guidelines and modeling. Although petitioners ask the court to impose a higher air quality standard, pursuant to SEQRA, than that currently enforceable under the Clean Air Act and NAAQS, such rule making is neither warranted nor appropriate and courts have declined to do so.(7) Spitzer v. Farrell, supra, at 13, 14.

Given the decisions in American Trucking and Farrell, I find no legal basis to compel the applicant to conduct a PM2.5 air quality review, and I find that Department staff's review and analysis of the PM issues for the instant project, including reliance on the PM10 NAAQS, the applicable and current NAAQS for PM, cannot be considered irrational or arbitrary.

The present dearth of reliable baseline information and modeling techniques for PM2.5 further erodes the basis for directing a PM2.5 analysis for this project. The absence of clarity from EPA on modeling and analyzing PM2.5 is plainly evident in this record. In an October 1997 memo from the Director of EPA's Office of Air Quality Planning & Standards, the Director states:

In view of the significant technical difficulties that now exist with respect to PM2.5 monitoring, emissions estimation, and modeling, EPA believes that PM10 may properly be used as a surrogate for PM2.5 in meeting [new source review] requirements until these difficulties are resolved.

EPA believes that it is administratively impracticable at this time to require sources and State permitting authorities to attempt to implement PSD permitting for PM2.5. The EPA has projects underway that will address the current technical and informational deficiencies, but it will take 3-5 years to complete these projects. Until these deficiencies are corrected, EPA believes that sources should continue to meet PSD and NSR program requirements for controlling PM10 emissions ... and for analyzing impacts on PM10 air quality. Meeting these measures in the interim will serve as a surrogate approach for reducing PM2.5 emissions and protecting air quality. IC, Exh. 66. (Emphasis added).

The uncertainty surrounding PM2.5 is also apparent in a more recent letter dated April 20, 2000, from the Director of the EPA Region II Division of Environmental Protection and Planning, who stated:

When carrying out an environmental assessment under the National Environmental Policy Act (NEPA), which is analogous to SEQRA, we believe that analysis of PM2.5 emissions would be appropriate if the project or plan involves significantly increased PM2.5 emissions ...

we believe such an analysis should take into account recent scientific studies that have reported associations of human health effects with varying concentrations of fine particles, as well as studies associating fine particles with effects on public welfare. At this time there are some limits to the analytical techniques available to estimate PM2.5 impacts. EPA has not yet developed methods of estimating PM2.5 emissions from many kinds of sources, including mobile sources. EPA is working to develop such information; and it is still possible to assess a project's fine particle impact now. IC, Exhibit 87. (Emphasis added).

The record further indicates that implementation of the proposed NAAQS for PM2.5 would occur gradually and allow for sufficient time to establish PM2.5 monitoring networks, designate areas as attainment or nonattainment and develop control strategies. See 62 Fed. Reg. at 38701. In fact, EPA expressly intended to keep the PM10 standard in effect during the transition to the new PM standard. See id. The implementation plan called for a "comprehensive monitoring network to determine ambient fine particle concentrations across the country" using 1500 monitors. See IC, Exh. 90 (Department staff brief, exhibit B, Implementation Plan for Revised Air Quality Standards, p. 7); see also IC, Tr. at 1380, 1381. In addition, three calendar years of federal reference monitoring data would be needed to determine whether or not areas meet PM2.5 standards. See IC, Exh. 90; IC, Tr. at 1380. Following this monitoring schedule and after time for data analysis, determinations as to which areas would be designated nonattainment would not occur until 2002. See IC, Exh. 90; IC, Tr. at 1338. Beginning in 2002, areas designated nonattainment for PM2.5 would have three years to develop and submit to EPA pollution control plans to meet the new standards. See IC, Exh. 90.

The Department has established PM2.5 monitoring stations and is currently collecting data. See IC, Exh. 63, 64; IC, Tr. at 1375, 1377, 1379. 1999 data has been collected but more data is needed. See IC, Exh. 64; IC, Tr. at 1379-1384. The necessity for additional and accurate data was noted by Department staff, who stated that the current PM2.5 data is inadequate to properly assess background PM2.5 ambient concentrations or comprehend PM2.5 impacts from a particular source for control measure or source specific permitting purposes. See IC, Tr. at 1343-1346, 1380-1383. In addition, EPA has authorized the Department to use PM10 as a surrogate for PM2.5 in meeting NSR and PSD permitting requirements. See IC, Exh. 66; IC, Tr. at 1343, 1344.

Finally, it bears mention that the record does not indicate that the proposed project would have any meaningful impact on ambient PM10, or cause an exceedance of the NAAQS for PM10. See IC, Exh. 6, App. at J-11; Exh. 7 at 15. Even assuming the existence of a valid NAAQS for PM2.5, EPA notes that "analysis of PM2.5 emissions would be appropriate if the project or plan involves significantly increased PM2.5 emissions." IC, Exh. 87. (Emphasis added). Here, the applicant's assertion that the project at issue "is likely to have a net positive impact on PM2.5 levels by reducing the number of trucks on the roads of New York" is not unreasonable; as noted earlier, the project is a marine-to-rail transfer station and truck use is not contemplated. See, n.4, supra. The use of barges and trains to export waste from the City would likely displace some trucks that would ordinarily perform that function, and Petitioners do not dispute this point. IC, Tr. at 1349; Brief of ED, NRDC and LCV, June 12, 2000 at 20.

As for Petitioners' reliance on Matter of the Applications of Consolidated Edison Co. of New York, Inc., (Decision of the Commissioner, September 14, 1983) to support their position to use SEQRA authority for further PM2.5 analysis, that proceeding is distinguishable. In the Con Edison matter, the Commissioner allowed the utility to convert certain oil-burning facilities to low sulphur coal on the condition that it employ certain pollution control equipment to minimize the impact of sulfur dioxide ("SO2") emissions on acid precipitation in the Adirondacks. The then-existing secondary standard in 1983 to protect the environment was sufficiently high and deemed not to be sufficiently protective of the environment by the Commissioner. The Commissioner employed SEQRA authority to choose among technology and fuel alternatives to reduce SO2 impacts resulting from the facility which would adversely impact the Adirondacks.

However, unlike PM, the regulatory responses to SO2 emissions, such as the technology and fuel alternatives explored in the Con Edison proceeding, were well established and contained a scientific and engineering component that could be used to calculate distant impacts with a reasonable degree of certainty. Conversely, the PM2.5 issue is challenged by a lack of acceptable data, disputes about the adequacy of the database or the time needed to adequately analyze it, uncertainty about PM2.5 modeling protocols, and other elements that render the PM2.5 issue far different than the science and engineering surrounding the Con Edison technology and fuel alternatives. In sum, the Con Edison matter cannot be equally or similarly compared to the questions and circumstances surrounding PM2.5 and the AMR application.

Conclusion

The record indicates PM2.5 is a considerable health concern that warrants further study, and the Department, as noted earlier, is in the midst of a significant undertaking to compile data and analyze the results from its PM2.5 monitoring efforts. The record is clear, however, that a comprehensive database needs to be developed. The record also demonstrates that a substantial amount of time is necessary to establish an accurate PM2.5 database that allows for reliable modeling and the development of an appropriate regulatory response for site specific permitting. Consistent with efforts underway to better understand and reduce PM2.5, the Department is directed to continue to work with EPA and the City of New York on developing methods to estimate emissions of PM2.5 from sources.

Insofar as this administrative proceeding is concerned, the instant set of facts arises at an extraordinary point in the PM2.5 continuum in that the science, law and regulatory understanding of PM2.5 is still evolving. From a research standpoint, the ability to understand the potentially harmful constituents of PM2.5 is less certain, the methods of estimating PM2.5 emissions from many kinds of sources are not established and the information needed to implement the proper regulatory strategy is lacking. From a legal basis, the circuit court decision in American Trucking invalidating the proposed PM2.5 regulations and the recent decision in Farrell, which involved facts and legal arguments passably analogous to this proceeding, do not support a finding that PM2.5 analyses be conducted for this project.

In view of the applicable law, the facts of this administrative proceeding and the present state of PM2.5 research, data collection and modeling, I find that an analysis of the potential PM2.5 impacts from this project need not be included in the EIS. Accordingly, for the above stated reasons, the ALJ's rulings concerning PM2.5 are reversed.

Other Issues on Appeal

Department staff contend the ALJ erred by finding that solid waste transfer stations are only subject to the requirements of 6 NYCRR 360-1 (general provisions for solid waste management facilities) and 6 NYCRR 360-11 (permit requirements for solid waste transfer stations).(8) Department staff assert that 6 NYCRR 360-6 (permit requirements for liquid storage tanks) applies to transfer stations. Staff Appeal, p. 19. In her ruling, the ALJ held that "6 NYCRR §360-11.1 states that transfer stations are subject to Subparts 360-11 and 360-1 only. Thus, Subpart 360-6 is inapplicable." Rulings at 39. NYCEJA agrees with Staff's position on appeal that Subpart 360-6 applies to solid waste transfer stations, but, unlike Staff, contends further that these provisions apply to AMR's 50,000 gallon holding tank.

I agree with the ALJ's findings that based on these facts the liquid storage tank permitting provisions of Subpart 360-6 are not applicable to AMR's proposed project. See IC, Tr. at 1093-1097, 1101. As to Department staff's position that Subpart 360-6 provisions could be applied to transfer stations or other solid waste management facilities (see e.g., 6 NYCRR § 360-1.2(b)(158)), I concur. Subpart 360-6.1 provides that:

All new liquid waste storage tanks and surface impoundments located at solid waste management facilities are subject to regulation under this Part ... Liquid storage facilities for solid waste management facilities regulated under Subparts 360-4 [land application facilities], 360-5 [composting facilities] and 360-14 [used oil facilities] are not subject to regulation under this Subpart.

A reasonable construction of this provision is that those solid waste management facilities not expressly identified as exempt from the requirements are subject to those provisions.

Miscellaneous

NYCDOS also appeals from the ALJ's Ruling on yard hostler emissions and engine performance. The ALJ held that an EIS should include further information in addition to what is already provided on hostler emissions and deterioration of engine performance. See, NYCDOS Appeal at 14-16. With respect to hostler emissions, AMR used reasonable assumptions in its modeling to evaluate the effect of hostler emissions from this source. The assumptions used to evaluate these emissions were not shown to be faulty. Regarding deterioration of engine performance, AMR's use of its model and protocol is appropriate in view of the proposed USEPA model which is not final and is subject to further revisions.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Dated: Albany, NY
February 14, 2001

1. References to the ALJ's August 25, 2000 Rulings are delineated as (Rulings at __). References to the transcript from the issues conference are delineated as (IC, Tr. at __). References to exhibits identified during the issues conference are delineated as (IC, Exh.__ at __).

2. Department staff rescinded the negative declaration for the AMR application on September 28, 2000 and the applicant agreed to move forward with preparation of an EIS. This has rendered moot the arguments on appeal that an EIS be required. However, the Department staff's treatment and analysis of particulate matter for this project as described in the negative declaration is integral to a consideration of the instant appeals.

3. A micron or micrometer is a unit of measurement equal to one millionth of a meter and is abbreviated by the letter . The current 24-hour standard for PM10 is 150g per cubic meter and the annual average limit is 50g per cubic meter. 40 C.F.R. § 50.6.

4. A point that bears mention is that the ALJ's recommendation that PM2.5 be considered relative to AMR's project appears, in large part, based on "contingent" truck use at the facility. Rulings at 59. The project at issue, however, is a proposed marine-to-rail transfer station. Facility equipment with diesel engines proposed for active use at any one time includes two excavators, two yard hostlers, and one gantry crane. IC, Exh. 6, A-9-10. Use of trucks to transport solid waste to or from the facility is not contemplated. Id. at I-7; see also IC, Exh. 71e.

5. For particles with an aerodynamic diameter of 2.5 microns or less ("PM2.5"), EPA has proposed a 24-hour standard of 65g per cubic meter and an annual average limit of 15g per cubic meter. 62 Fed. Reg. 38,652 (1997).

6. The sources of PM are very diverse. "Particles originate from a variety of anthropogenic stationary and mobile sources as well as from natural sources. Particles may be emitted directly or be formed in the atmosphere by transformations of gaseous emissions such as sulfur oxides (SOx), nitrogen oxides (NOx), and volatile organic compounds (VOC). The chemical and physical properties of PM vary greatly with time, region, meteorology, and source category." Id.

7. The court's assessment of rule making in this context has been similarly recognized by the Commissioner. "It is clear that authority exists under SEQRA to examine the specific circumstances of proposed actions and ultimately require adherence to standards more restrictive than those in promulgated rules. However, SEQRA review of an individual action cannot be used as an alternative to rulemaking where the concern involves the adequacy of the standard generally, rather than circumstances specific to the proposed action. If such were the case there would be no purpose to the setting of regulatory standards." Matter of Harbert/Triga Company, Interim Decision of the Commissioner, 1989 (submissions by group indicated that its objection was to the validity of the emission standard rather than a concern over the "specific circumstances" related to the facility that make the relevant standard "inadequate for public health protection"); see also, Matter of Lane Construction, Hearing Report, June 26, 1998, n.8 (in hearing report issued prior to American Trucking decision, ALJ noted that methodology for modeling projected PM2.5 concentration "has not yet been established" and that the proposed PM2.5 standards "will not be effective for several more years").

8. Staff, however, agrees with the ALJ's holding that the liquid storage permitting requirements at 6 NYCRR 360-6 do not apply to the AMR project.

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