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Brooklyn Navy Yard - Commissioner Ruling 2, October 21, 1993

Commissioner Ruling 2, October 21, 1993

RULING ON MOTIONS TO REOPEN THE HEARING

This ruling is in response to two motions made by the New York Public Interest Research Group ("NYPIRG") to reopen the captioned proceeding.

The first set of issues raised by NYPIRG involves the implementation of the new State Clean Air Compliance Act (Chapter 608, Laws of 1993). As set forth in my last decision, the terms of the new law would require the facility to obtain emission offsets for oxides of nitrogen ("NOx") and volatile organic compounds ("VOCs") and that a base-line health risk study be done. NYPIRG asks that the specifics of how these requirements will be implemented be included in the permits for the facility. It argues that the specifics of implementation should be the subject of a reopened proceeding.

Minimally, a permit condition must be sufficiently detailed so that its purpose is clear and so that it may be implemented in a rational way. Once a condition has achieved this minimal sufficiency, further specification represents a trade-off between flexibility of implementation on the one hand and the need to achieve greater certainty on the other.

The Clean Air Compliance Act already gives adequate guidance to draft a legally sufficient permit condition. To the extent that further definition becomes necessary, the most efficient way of accomplishing it is through the permit administration process. I note that during the proceeding, although NYPIRG argued that emission offsets should be required, it never requested that the permit condition specify the precise sources that would be used as offsets, apparently recognizing that the particular sources would be specified in the course of the Department's administration of the permit.

As a separate matter, NYPIRG maintains that the emission offsets must be authorized by regulations promulgated by the Department. NYPIRG states that newly adopted subdivision ECL 19-0302(2), codified as part of the Clean Air Compliance Act, requires that any performance, emission or control standard more stringent than what is required under the amended Federal Clean Air Act (Pub. L. 101-549) ("CAA") be authorized by rule. Since offsets might not be required by the CAA, NYPIRG argues that regulations are necessary before an offset requirement can be imposed.

The purpose of ECL 19-0302(2) is to ensure that any standards which exceed federal requirements are authorized by some rule of general applicability, not that the authorization be by regulation rather than by statute. Therefore, the Clean Air Compliance Act itself, through the adoption of ECL 19-0321, provides the necessary authorization to exceed federal requirements with respect to NOx and VOC offsets. Moreover, ECL 19-0302(2) was enacted for the protection of regulated parties who may be subjected to environmental requirements that are more stringent than those prescribed under federal law, not for the protection of third parties. The Co-Applicants have not objected to this permit condition and, in fact, could voluntarily agree to include emission offset conditions even if there were no authority to impose them.

Lastly, NYPIRG raises the question of whether the transition rules in the newly promulgated 6 NYCRR Part 360 ("Part 360") alter the solid waste management rules under which the facility would be reviewed. These amendments, which became effective October 9, 1993, specify that applications that are complete but for which permits have not been issued be reviewed under rules that were in effect immediately prior to that date [6 NYCRR 360-1.7(a)(3)(vi)].

The transition rule is intended to assure continuity in the review of applications that were pending on the date the new regulations became effective. In this case, the regulations that this facility was subject to immediately prior to the effective date of the new regulations were the ones contained in the version of Part 360 that was effective on April 1, 1987. The transition provision merely preserves the April 1, 1987 regulations as the governing ones for this facility.

In summary, I conclude that there is no basis for reopening the hearing.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling on Motion to Reopen and Motion for Clarification to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 21st day of October, 1993

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER
_____________/s/_____________

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