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Brooklyn Navy Yard - Fifth Interim Decision, September 9, 1993

Interim Decision, September 9, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Applications

- of -

SES BROOKLYN COMPANY, L.P. ("SES") and THE CITY OF NEW YORK ("CITY"),
AS CO-APPLICANTS

for permits to construct and operate a solid waste management facility
(resource recovery facility), which would use mass-burn technology for the incineration
of approximately 3,000 tons per day of New York City's municipal solid waste,
to be located on approximately 13 acres of land in the northeastern section of
the Brooklyn Navy Yard, Kings County (Brooklyn), New York,
pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7
(Solid Waste Management and Resource Recovery Facilities) and pursuant to
Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR") Part 360 (Solid Waste Management Facilities).
Permits are also required pursuant to the following sections of 6 NYCRR:
Part 201 (Air Resources), Parts 750-757 (Water Resources),
Part 608 (Protection of Waters), Part 661 (Tidal Wetlands),
and a Water Quality Certification is required pursuant to Public Law #92-500.

DEC Project No. 20-85-0306

FIFTH INTERIM DECISION

September 9, 1993

FIFTH INTERIM DECISION

On November 14, 1989, after 80 days of adjudicatory hearings and extensive briefing, I issued the Fourth Interim Decision in this matter. That Decision addressed a multitude of factual, legal and policy issues which had been raised during the extensive administrative permit hearings which had occurred over the previous two and one-half years. The Brooklyn Navy Yard Resource Recovery Facility (the "Project" or "Facility") has been subject to intensive environmental review by all levels of government as well as by the public. The determinations concerning construction and operation of the Project have been among the most carefully scrutinized decisions on an infrastructure project in the country.

Based upon careful consideration of the questions raised in the adjudicatory hearing, juxtaposed with the critical need for the City of New York (the "City") to implement strategies to bring it into compliance with the New York State Solid Waste Management Plan, I determined that, subject to stringent permit conditions, the Project could be constructed and operated in accordance with the applicable statutory and regulatory standards in such a manner so as not to cause a significant impact on human health and the environment.

However, at the time, the City, as the co-applicant with the responsibility for the disposal of ash residue from the Facility, did not have a viable ash disposal plan. Without the identification of an acceptable ash disposal site, I was unable to make a determination that the Project satisfied the mandates of either 6 NYCRR Part 360 ("Part 360") or the State Environmental Quality Review Act ("SEQRA"). Therefore, I did not grant the requested permits.

In my Decision, I directed the Co-Applicants to submit a proposal to provide for ash disposal in compliance with Part 360. Upon its receipt, the matter was then to be remanded to Administrative Law Judge ("ALJ") O'Connor for his determination as to whether there were substantive and significant issues concerning the conformance of the identified ash disposal facility with the provisions of 6 NYCRR 360-3.2(e).

In the approximately three year period between my Fourth Interim Decision and the City's submittal of an ash disposal proposal in September 1992, the solid waste crisis in New York City has heightened. Moreover, in the fall of 1992, the Department of Environmental Conservation (the "Department" or "DEC") approved a comprehensive solid waste management plan for New York City which provides a variety of strategies through which the City can come into compliance with the State Solid Waste Management Plan. Integral to the City's plan are initiatives for waste reduction, recycling and composting, as well as the Brooklyn Navy Yard "waste to energy" project and continued landfilling at Fresh Kills. It is against this background that I am issuing this Fifth Interim Decision.

The City has now submitted a revised proposal which calls for the disposal of the ash at the Charles City County Landfill in Virginia, operated by Chambers Development of Virginia, Inc. According to my previous Interim Decision, ALJ O'Connor convened an issues conference to determine whether there were substantive and significant issues concerning the ash disposal plan. Additionally, other issues were open to consideration upon a showing that there was significant new evidence (see 6 NYCRR 624.17(b)).

Subsequent to the reconvened issues conference, ALJ O'Connor held that, with the inclusion of certain conditions, there were no issues that warranted additional adjudication. This Interim Decision resolves the appeals from ALJ O'Connor's ruling.

As an initial matter, I am denying the outstanding motion by the Community Alliance for the Environment ("C.A.F.E.") for my own recusal in this decision making process, such motion being predicated on allegations of ex parte communications between myself and ALJ O'Connor and of bias. Neither the State Administrative Procedures Act, the Department's own regulations nor Executive Order No. 131 restricts off the record discussions between an agency commissioner and the ALJ who is acting as the commissioner's representative in a hearing. The Executive Order requires that any direction which I gave to ALJ O'Connor be made part of the record and, to the extent that occurred, it was disclosed as part of the record of this proceeding.

Any conclusions that I have reached in this matter are the product of a review of this record in the context of the laws, rules and public policies that govern the review process. Forming an opinion based on these inputs is the essence of decision making in the adjudicatory forum; it does not constitute bias.

The remainder of this Interim Decision will address the issues that were proposed for adjudication. For the sake of clarity, the issues are presented by subject area.

Ash Disposal

Since the proposed disposal site was not in operation on the effective date of the most recent revisions to Part 360, the applicable regulatory requirement for judging the acceptability of this proposal is 6 NYCRR 360-3.2(e)(1)(iv). That regulation requires that the construction of the designated facility be authorized, that the facility have a projected capacity sufficient to receive five years of ash residue generated by the Project, and that there be a letter of intent to execute an agreement for a term of five years from the anticipated start of operation. While meeting the terms of the regulation is not an iron-clad guarantee that the designated landfill will be available for the first five years of the operation, it does provide adequate certainty for this stage of the project review process. The promulgation of the regulation in this form represents a compromise between the hardship that providing greater certainty would impose on an applicant and the risks that lesser certainty would present.

As I have stated previously, the purpose of this regulation is to provide reasonable assurances that an acceptable landfill has been identified, that it has adequate capacity and that it will likely be available for use by the applicant (In the Matter of Foster Wheeler-Broome County, Inc., Decision of the Commissioner, December 18, 1991). Absent extraordinary circumstances, such as an imminent enforcement action seeking closure of the facility, compliance with the regulatory requirement provides those reasonable assurances.

Principally, the intervenors argue that the City has not adequately demonstrated that the Chambers facility has authority to accept the ash wastes, that the agreement between the City and Chambers is inadequate, and that there is no demonstration that the facility will have available capacity to receive five years of ash waste from the Brooklyn Navy Yard. My own review of the parties' submittals supports the ALJ's conclusion that there is no substantial question about whether the City has demonstrated compliance with these regulatory requirements.

The issue concerning authorization relates to whether the ash is classified as a hazardous waste under state and federal law. Both the Department of Environmental Conservation (the "Department") and the U.S. Environmental Protection Agency ("EPA") have consistently maintained that ash residue resulting from the incineration of household waste is exempt from the hazardous waste definition (for the most recent statement of EPA's position see Memorandum from then EPA Administrator Reilly dated September 18, 1992, Exemption for Municipal Waste Combustion Ash for Hazardous Waste Regulation under RCRA Section 3001(i)). That position has been upheld by the federal appeals court with jurisdiction in New York (Environmental Defense Fund v. Wheelabrator Technologies Inc., 725 F. Supp. 758 (S.D.N.Y. 1989), aff'd, 931 F.2d 211 (2d Cir. 1991), cert. denied, 112 S.Ct. 453 (1992)). Although a contrary result on this same question was reached by another federal appeals court, that court does not have jurisdiction in either New York or Virginia. The conflicting interpretations of federal law have not been resolved and it would be speculative to assess whether there will be any change in the applicable law in the foreseeable future. For this Decision, I am legally bound to follow the interpretation of the Second Circuit Court of Appeals.

I also find that there is no substantial issue concerning the extent of the commitment that Chambers has made to the City or whether the landfill will have adequate capacity. The documentation shows that Chambers has made a sufficient commitment to dispose of up to 1500 tons of ash per day in an identified facility (i.e., the Charles City County Landfill) that has a capacity of 5000 tons per day for more than 5 years. Other long-term commitments made by Chambers at this facility do not conflict with this commitment.

Some of the parties have argued that they have not received adequate information about the letter of intent. They point out that not all of the information that is set forth in the Department's Technical Assistance and Guidance Memorandum ("TAGM") is available for public inspection due to claims of confidentiality. I conclude that the parties have been provided enough information about the letter of intent to be able to state any relevant objections under the standards set forth above. Much of the material that has not been provided relates to the cost of the contract and it is not the Department's function to determine whether the terms of the letter of intent favor one party or another in a commercial sense.

There also is no basis to consider the possibility that the ability of Chambers to deliver disposal services will be impaired by any enforcement action of State or federal regulatory authorities. While Chambers has had to address certain operating problems, none of them rise to a level where enforcement action is contemplated, let alone to a level where the facility's operating authority might be in jeopardy.

Finally, I concur with ALJ O'Connor's conclusion that my prior decision determined that the ash disposal requirements of the current Part 360 regulations are applicable to the Project. No new information was cited to warrant reconsideration of that determination.

Recycling Conditions

Enforcement

In my last Interim Decision, I held that the City's plans for its recycling program were adequate to provide reasonable assurances that the City would implement a program that would satisfy the recycling requirements of state law. The plan and the City's Local Law No. 19 establish a mandatory recycling program and a mechanism to enforce it. The problems the City has experienced with implementing that program since then do constitute new information which requires examination as a possible basis for revisiting the enforcement issue.

The shortcomings in implementing Local Law No. 19 were not caused by deficiencies in the substance of the recycling program but rather in the enforcement mechanism. To some extent, the enforcement mechanism will be enhanced if the City becomes obligated to implement Local Law No. 19 as a condition of the permit that may be issued for the Project. Nonetheless, it is apparent that ensuring compliance with Local Law No. 19 is a much more serious concern than was previously contemplated.

In order to address the enforcement issue, ALJ O'Connor recommended the imposition of two additional conditions and the intervenors seek others that he did not recommend. Since the circumstances concerning the enforcement issue are not in substantial dispute, determinations can be made on the need for these conditions without an evidentiary hearing.

The two conditions recommended by ALJ O'Connor would impose additional prerequisites to the issuance of the construction and operating permits respectively. The construction permit would not be issued until the City demonstrates compliance with the Environmental Conservation Law ("ECL") and General Municipal Law ("GML") 120-aa in that an ordinance requiring the source separation of all wastes for which an economic market exists would need to be in place. The operating permits and certificates would not be issued until the City demonstrates that it has achieved a level of recycling consistent with the tonnages that are set forth as goals in its Local Law No. 19.

Requiring compliance with GML 120-aa prior to construction follows as a natural consequence of my last Interim Decision. There, I determined that compliance with this section of law would be a condition of any permit issued for the Facility. At that time, the requirements of GML 120-aa had not yet become effective and, as a consequence, the requirement was prospective in nature. Now that the implementation date of September 1992 has passed, it is necessary to modify the requirement.

On October 22, 1992, the City adopted Local Law No. 576 which requires that all materials for which economic markets exist be designated and that provision be made for their source separation. The City has adopted rules pursuant to this Local Law and as a condition of the approval of its Comprehensive Solid Waste Management Plan (the "Plan"), it is required to implement those rules in full by September 30, 1993 (Letter from DEC Deputy Commissioner Edward O. Sullivan to New York City Department of Sanitation Commissioner Emily Lloyd dated October 28, 1992). Fulfillment of this condition would place the City in compliance with GML 120-aa. Therefore, instead of the condition recommended by ALJ O'Connor, I conclude that a condition in the construction permits which memorializes this obligation is sufficient.

I do not concur with ALJ O'Connor's recommendation concerning the additional condition which would serve as a prerequisite to the issuance of any operating permits and certificates. In my last Interim Decision, I recognized that the recycling tonnage goals in Local Law No. 19 might not be met due to circumstances beyond the City's control. The current difficulty in meeting these goals is due to a combination of circumstances, some (but not all) of which can be controlled by the City. This factor together with the evidence previously submitted showing that this type of condition would make the financing of the Facility difficult, if not impossible, leads me to conclude that such a condition would not serve the public interest.

Although the City's commitment to its recycling program is a significant concern, other less absolute conditions are more appropriate. One such condition has already been imposed subsequent to the last Interim Decision. I refer to the City's commitment to fund environmental monitors employed by the Department who will observe and measure the City's compliance with the terms and conditions of the Plan (Second letter from DEC Deputy Commissioner Edward O. Sullivan to New York City Department of Sanitation Commissioner Emily Lloyd dated October 28, 1992). While such a condition bolsters the assurance of compliance with recycling requirements, I find that additional conditions are needed in light of the new information cited above.

Accordingly, I have reconsidered my prior determination concerning stipulated penalties. I previously held that there should be an opportunity to evaluate the circumstances surrounding violations in order that the outcome of each enforcement action properly reflect the equities of the particular case. However, due to the difficulty in arriving at an appropriate enforcement regime which will provide sufficient incentive to the City to meet its obligations, I find that the public policy concerns now balance in favor of establishing a stipulated penalty corresponding to the statutory maximum, which would be imposed whenever there is a finding that any recycling condition has been violated. This penalty would not apply in situations where, as per my last Interim Decision, the City can demonstrate by a preponderance of the evidence that it has taken all reasonable steps to achieve the recycling goals in Local Law No. 19 and that the failure to achieve the goal was due to factors beyond its control.

Finally, I find that the other enforcement measures that have been suggested by the parties either are not warranted or are impractical at this time. Even so, the City is put on notice that the enforcement provisions identical to those in the permits for the Facility will be placed in the permits for all other solid waste facilities that it operates or are operated on its behalf. Failure to comply with recycling conditions will thus constitute a violation of all of its permits. Additionally, if there are significant compliance problems with the recycling terms of any permits that are issued, the Department will seek to modify the terms in order to impose additional compliance mechanisms.

Organic Waste Composting

In addition to the enforcement provisions, the New York Public Interest Research Group ("NYPIRG") asks that the City be required to implement a more ambitious program for the composting of food and other organic wastes. This program would be in addition to the one which addresses yard wastes.

Although NYPIRG presents the results of a study about the feasibility of organic waste composting, that study does not contain the significant new evidence that would be necessary to warrant reopening the hearing on this issue. The NYPIRG report is merely one study among many on this topic. Particularly in fields where there is on-going research, the publication of a new study is not a sufficient basis to reopen the hearing record unless it can be shown that the study adds to the knowledge of the field in some new and significant way directly relevant to the proposed issue. Otherwise, there would never be any end to the decision-making process.

Compliance with ECL 27-0707(2)(b)

NYPIRG points out that ECL 27-0707(2)(b) requires that a condition be placed in the solid waste permit for any municipal applicant that requires the municipality to have in effect an approvable local solid waste management plan no later than April 1, 1992. Since the Department did not determine that New York City had such a plan until October 28, 1992, the intervenors argue that the City did not meet and indeed can never meet the requirements of this statute.

The provision in question arises out of a 1990 amendment to the State's solid waste laws (Chapter 742, Laws of 1990). That amendment was intended to ensure that municipalities with applications pending committed to meet a deadline between April 1, 1991 and April 1, 1992 for preparing approvable solid waste management plans. While the statute does not explicitly address a situation where a municipality with an application then pending would not have received a decision on its application by the end of this period, the intent of the statute is to ensure that municipalities are legally obligated to prepare and, in fact, do prepare such plans. Its intent is not to place an indefinite moratorium on municipalities that miss the deadline. A municipality that had an application pending prior to April 1, 1991 but which has not been permitted by April 1, 1992 may not receive a permit until it has an approvable plan. Once it has such a plan, the intent of the statute has been satisfied. The City now has an approvable plan.

Record of Compliance

The Department has placed increasing emphasis on the prior compliance history of permit applicants. It has articulated its concerns both in agency policy documents and in administrative hearing decisions. The Department has stated that, as part of its permit review, the suitability of applicants must be considered (Enforcement Guidance Memorandum II.24 - Record of Compliance). That review is intended to ensure the applicant's reliability to carry out the terms and conditions of any permit that may be issued (In the Matter of American Transfer Company, Interim Decision of the Commissioner, February 4, 1991).

Several of the intervening parties in this proceeding seek to raise an issue concerning the record of compliance of Applicant SES Brooklyn Company, L.P. ("SES"). The principal basis cited by these parties is the compliance history of Waste Management, Inc. ("WMI") and its subsidiary Chemical Waste Management, Inc. ("CWM"). WMI recently acquired a controlling interest in Wheelabrator Technologies, Inc. ("Wheelabrator"), of which Applicant SES is a wholly owned subsidiary. Although the offers of proof include information about the compliance histories of Wheelabrator and SES, the relationship between these companies has always been well known and there is no significant new information about their respective compliance histories.

Review of the offers of proof that were made regarding WMI's record of compliance, its corporate structure and its relationship with the Applicant SES demonstrate that they are not based on speculation but are substantive in nature. The information is based on documentary evidence which is not substantially disputed. The offers of proof demonstrate serious compliance problems at facilities managed by WMI and show that WMI will have substantial influence over environmental compliance matters involving the Applicant SES.

The record reveals a number of very serious environmental violations particularly in the area of solid and hazardous waste management. The most significant of these were committed by CWM, including a recent $11.6 million fine levied for violations which occurred in the course of a remedial action, but a number were committed by WMI itself. As recently as 1991, WMI was fined $4.1 million by the State of Pennsylvania for violating the terms of its solid waste landfill permit.

Since the information needed for decision making is not in substantial dispute, there would be no purpose served in conducting an evidentiary hearing. Instead, the information must be analyzed to determine whether further action is needed under these circumstances. The ultimate question concerns the effect prior compliance history may have on the Applicant's reliability to comply with all the terms of its permit (In the Matter of American Transfer Company, supra). A prior compliance history problem is particularly troublesome where there are inadequate economic incentives to ensure that an applicant views compliance as being in its interest, i.e., where an applicant who has a demonstrated propensity to violate the law perceives that it may be able to gain an economic advantage through non-compliance.

The analysis also must take into account other factors that would bolster an applicant's reliability. These factors are part of a system of checks and balances on the applicant's conduct that the decision maker must evaluate in order to determine whether an applicant will perceive that it would gain an economic advantage through non-compliance. In making a judgment on this question, there is no simple formula that can be employed. All relevant factors must be weighed and, in most cases, no one factor will be determinative. The evaluation of each case is necessarily very fact-specific.

In this case, the factors that would increase the assurances of the Applicant's reliability include permit conditions that provide greater government and community oversight of operations as well as severe economic disincentives associated with non-compliance.

The permit conditions require the Applicant to provide continuous emission monitoring of a variety of pollutants and to transmit this data by telemetry to the Department. Day-to-day operations will be overseen by a number of full-time environmental monitors employed by the Department and a community oversight committee will also be established to review the Facility's performance. The potential sanctions for non-compliance, both in terms of civil penalties and the suspension or revocation of the Facility's permits, would have drastic economic consequences for the Applicant SES and its parent companies.

However, in light of the prior compliance problems of WMI, the condition governing the environmental monitoring responsibilities of the Co-Permittees will need to be strengthened and clarified. Condition V.F. to the draft air permit will need to reflect the fact that the monitors will be responsible for inspecting all aspects of the Facility's operation and that the Co-Permittees shall be responsible for funding at a level that may reach the costs of requiring monitoring the facility 24 hours a day. The actual level of monitoring that will be required will be set by the Department depending on Facility performance and the compliance record of the Applicant SES and its parent companies.

There are other factors that must also be considered. If the Facility is permitted, it will be one of the most closely scrutinized operations in the country. It would be one of the largest resource recovery facilities operating anywhere and the success of its operations will significantly impact on the business reputation of the Applicant and its parent companies.

In making a judgment on this issue, all of the above factors have been considered. Based on a review of them, I am satisfied that there are sufficient assurances concerning the Applicant SES's reliability to comply with the terms of any permit that may be issued, even in light of WMI's serious compliance problems.

Additionally, it has been argued that the prior compliance history of the Co-Applicant City should be examined and serve as the basis for further permit conditions or permit denial. Although the City would be a co-permittee, it is SES that will be responsible for the Facility's construction and operation. The compliance record of the City need not be considered since the policy concerns relate to ensuring that facilities are built and operated according to the permit terms, activities over which the City will have only minimal control.

Air Quality

The intervening parties seek to raise two issues related to air quality: (1) whether offsets will be required; and (2) whether additional fuel cleaning of organic wastes should be required as part of the determination of the lowest achievable emission rate ("LAER") for the oxides of nitrogen ("NOx").

Offsets

In the Fourth Interim Decision, I determined that state regulations exempted the Facility from the emission offset requirements of 6 NYCRR Part 231 because it is a resource recovery facility (6 NYCRR 231.8(b)). Since that Decision, Congress has adopted amendments to the Clean Air Act ("CAAA") (see Pub. L. 101-549) and, more recently, the State Legislature has adopted the Clean Air Compliance Act (Chapter 608, Laws of 1993) which, in part, is intended to implement the amendments to the Clean Air Act at the state level. The requirements of these new laws constitute changed circumstances that must be considered in this Decision.

The framework established in the CAAA for achieving compliance with the NAAQS requires the production of an inventory of pollutant loadings for the areas in non-attainment. States will be required to demonstrate progress in the reduction of these loadings in periodic intervals (see 42 USC 7511a(g) and 7512a(d)). Therefore, the addition of the emissions from the Facility in an area that is in non-attainment for ozone and carbon monoxide ("CO") would increase the burden on New York to demonstrate that it is making the necessary progress towards reducing pollution and achieving compliance with the NAAQS.

At present, it is not certain that the offset requirements of the 1990 amendments to the Clean Air Act will apply to the Facility as a matter of federal law (see Memorandum from J. Seitz, EPA Director of Office of Air Quality Planning and Standards, dated September 2, 1992, New Source Review Program Supplemental Transitional Guidance on Applicability of New Part D, NSR Permit Requirements). Whether those requirements will apply depends in large part on the scheduling of construction for the Project (Id. at pg. 2).

Similarly the adoption of the 1990 amendments to the Clean Air Act does not, by operation of law, change the requirements of Part 231. However, these amendments and the consideration of the new obligations that they place on states are factors that must be considered when the Department discharges its obligations under SEQRA (see In the Matter of Owl Energy Resources, Inc., Interim Decision of the Commissioner, February 26, 1993). Such factors constitute "other essential considerations" that must be taken into account when conducting the balancing of interests that any agency must do when it makes a decision on an action that has been the subject of an environmental impact statement (see ECL 8-0109(8) and 6 NYCRR 617.9(c) and (d)).

If the Project were subject to the 1990 Clean Air Act amendments, that statute would establish the parameters for addressing the state's new obligations vis-a-vis the permitting of new facilities in non-attainment areas. In fact, if the Facility ultimately does become subject to those requirements it will have to meet the precise requirements contained in the amendments. However, treatment of these considerations in the absence of the applicability of the CAAA is more flexible.

Balancing all of the factors present in this case, I conclude that the Department will satisfy its SEQRA obligations with respect to the pollutants that are relevant to ozone non-attainment through compliance with the Clean Air Compliance Act. ECL 19-0321 which was adopted as part of that act requires that the Applicants obtain offsets for projected NOx and VOCs emissions prior to the issuance of permits to construct. These offsets must be in a ratio of 1.3 tons of offset for each ton of emission and the requirement for NOx offsets may be met by the procurement offsets of either VOCs or NOx (ECL 19-0321(1)(c)). The statute also prescribes the sources that are eligible to be used as offsets (ECL 19-0321(3)). These provisions shall be incorporated as part of all construction permits and compliance with them shall be a condition precedent to the effectiveness of those permits.

While the new state law does not address CO emissions from the proposed facility, the Department must still discharge its SEQRA obligations in light of the changed circumstances occasioned by the passage of the CAAA. In that context, as a condition of obtaining construction permits, the Co-Applicants will also be required to obtain offsets for the projected CO emissions in a 1:1 ratio.

Additional Fuel Cleaning

With respect to the fuel cleaning issue, as stated above, NYPIRG has failed to present any substantially new information on the question of organic waste composting. Therefore, there is no basis to consider requiring the removal of such materials from the waste stream that will be incinerated as a further fuel cleaning measure.

Historic Preservation

There are two components to the historic preservation issue. The buildings at the Brooklyn Navy Yard Annex were recently declared eligible for both the national and state registers. However, while there is a dispute about the distance of the Annex from the Facility, even if it were as close as stated by the intervenors, no adverse impacts are alleged. Hence, there is no issue about impact mitigation that requires adjudication.

The second component relates to the location of the burial ground for American soldiers from the Revolutionary War. It has long been known that the British had disposed of bodies during the Revolutionary War in the vicinity of the Navy Yard and this condition was disclosed in the Final Environmental Impact Statement ("FEIS") (see FEIS pg. 2-17 and Appendix O)

The submission of additional information by the United Jewish Organizations of Williamsburg, Inc. ("UJO") does not constitute significant new information. Even if considered as new evidence, the information has only marginal value. This information, and in particular the so-called Johnson Map, does not make it substantially more likely that the location of the bodies is other than as previously disclosed in the FEIS or that the existing mitigation measures are inadequate. In light of the extensive work already done by the City in the course of preparing the FEIS, the information submitted by UJO does not warrant further inquiry. As the project site is neither registered property nor eligible property as defined in 9 NYCRR 426.2, the Department has no obligations with respect to the project site arising out of 9 NYCRR Part 428 - State Agency Activities Affecting Historic Or Cultural Resources.

Moreover, the City has agreed to perform an additional field testing in cooperation with the New York City Landmarks Preservation Commission prior to project construction (Letter from Emily Lloyd, Commissioner of New York City Department of Sanitation to Julia S. Stokes, Deputy Commissioner for Historic Preservation, New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") dated March 22, 1993). This commitment should be memorialized as a condition and included in the construction permits for the Facility. On this basis, I find that the requirements of both the State Historic Preservation Act and SEQRA have been satisfied with respect to this issue and that no further inquiry is required.

Article 15 Permit

Intervenor UJO alleges that much of the data that was relied upon to set the terms and conditions of the ECL Article 15 permit is now out of date. The Army Corps of Engineers, which also has approval authority of the dredging operation, will require retesting of the sediments that are proposed to be dredged and the use of new testing protocols. While these tests would generate new information, the ALJ recommended that the Department defer to the Corps' decision.

Although it is the policy of the Corps to require retesting if the data being relied upon is more than three years old, there is no evidence yet showing that the existing data is unreliable or that there is significant new information. Therefore, at this time there is no basis to reconsider this issue. This determination does not preclude the need for a modification at some future date.

Staleness of the FEIS and Health Risk Assessment ("HRA")

The intervenors contend that the FEIS did not address some of the project changes, most significantly the decision to dispose of ash at the Chambers Landfill and the associated transportation impacts. It is also contended that there are new health risk studies which warrant modifying the HRA.

Initially, I note that the lead agency for this action is the City and that it has issued an FEIS which has been sustained by the courts (In the Matter of Schiff v. Bd. of Estimate, 122 A.D.2d 57 (2d Dept. 1986)). Nonetheless, the regulation governing the environmental impact statement process (6 NYCRR Part 617) does provide for the reestablishment of lead agency status in circumstances where an FEIS is to be supplemented (6 NYCRR 617.6(f)(1)(i)). That same regulation contains criteria for determining when a supplemental EIS is warranted (6 NYCRR 617.8(g)). The request to require a supplement to the FEIS is considered in this legal context.

Review of the FEIS shows that it does discuss the option of transporting the ash to a facility other than the Fresh Kills Landfill, though not as the preferred alternative (see FEIS Appendix E). There are no significant impacts specific to the Virginia site that would require supplementation. None of the other matters that are raised as changed circumstances are significant enough to warrant supplementation of the FEIS either.

Although there are new health risk reports, none represents a breakthrough in the field of health risk analysis. As stated above, particularly in fields where there is on-going research, the publication of a new study is not a sufficient basis to reopen the hearing record unless it can be shown that the study adds to the knowledge of the field in some new and significant way relevant to the issue under consideration. This is not the case here.

Further reinforcing this determination is the fact that my last decision specifically rejected the notion of relying on the HRA to set the emission limits for toxics. Instead, the limits are set to the lowest limits achievable even where the HRA shows no health impact at higher emission levels.

However, I note that pursuant to the recently adopted state Clean Air Compliance Act, the City will be required to do a base-line health study (ECL 19-0321(4)). The terms under which the study must be done shall be set forth as a condition of any operating permits that are issued.

Other Permit Conditions

The Applicants and the Staff of the Department ("Staff") have also appealed some of the conditions that were recommended by ALJ O'Connor. There are no fact disputes relating to the need for or merit of these conditions. Resolution of these appeals does not require an evidentiary hearing and they are therefore addressed below. I note that conditions (a) and (b) have already been handled separately in the section of this interim decision related to recycling conditions. The lettering for these conditions follows the format used by the ALJ in his December 23, 1992 rulings.

Condition (c) - "The DEC environmental monitor position at the BNYRRF should be established as an Environmental Engineer III."

The issue should be handled as an internal personnel matter to be determined, in part, by the Department of Civil Service. It is inappropriate to make a determination in this forum. This condition should be removed.

Condition (f) - "The DEC Staff should require SES to provide a form of surety or financial responsibility."

I concur with SES that such a condition would be redundant and would not add significant additional assurances. This condition should be removed.

Condition (g) - "Ultimate approval authority for all major BNYRRF activities should be vested directly with a member of DEC's executive staff."

Authority for approvals should be decided as an internal agency matter and need not be made a permit condition. This condition should be removed.

Condition (h) - "The draft solid waste permit should be amended to incorporate Special Conditions 20 and 21 from the prior draft, i.e. - prohibitions regarding staging of barges outside the enclosed barge basin and spillage of solid waste into surface waters."

Although similar or identical provisions are already part of the final operation and maintenance plan, they should also be included as permit conditions. In this way, there will be no question regarding the applicability of all permit enforcement and administration procedures.

Condition (i) - "The draft air permit should be amended to add `industrial waste' to the list of excluded wastes."

Municipal solid waste incinerator facilities are intended to handle residential wastes or similar types of material from institutional, commercial and industrial sources. This has been the premise under which the waste stream for the Facility has been analyzed. Therefore, I conclude that the permit should contain a provision which excludes those industrial wastes (as defined in 6 NYCRR 360-1.2(b)(8)) which are not municipal wastes (as defined in 6 NYCRR 219-1.1(b)(6)).

Condition (j) - "Both the draft air and solid waste permits should be amended to explicitly add `consumer batteries' to the list of excluded wastes."

The addition of this condition is moot because such waste is already excluded under special condition III.N.2 of the Department's draft air permit.

Condition (l) - "The draft permit condition should be amended to delete special condition I.R.2.b. in its entirety and to reincorporate Special Condition 4.C. - Health Risk Analysis from the prior draft."

Condition I.R.2. is, in its present form, inconsistent with the direction in my last Interim Decision for setting emission limits for heavy metals. That Decision held that the emission limits would not be set based on the HRA but rather on lower levels that were demonstrated to be routinely achievable. It follows that demonstrating that actual annual emissions are within the limits of the HRA and that the emissions do not pose a significant health or environmental risk is not a defense to non-compliance. Special condition I.R.2. should be deleted in its entirety.

Other Issues

Several other issues not addressed above were in the parties' appeals. These issues do not merit separate treatment in this Interim Decision. They have either been adequately addressed in the ALJ's ruling or improperly raise issues that were never presented to the ALJ.

Party Status

ALJ O'Connor denied party status to all those who applied for late party status on the basis that there were no issues for adjudication. He also held that the prospective parties had failed to provide an adequate explanation for the late filings.

It is apparent that those who applied for party status have an adequate interest in the proceeding. However, as there are no issues that require adjudication, the requests for party status are denied.

Summary

If the Co-Applicants accept the amendments to the draft permit discussed above, I find that there are no issues that require adjudication. In that event, the Staff shall amend the draft permits accordingly and this will then constitute my final decision in this matter. Staff is then authorized to make the agency findings that are required by SEQRA and to proceed to issue all construction permits.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Fifth Interim Decision 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 9th day of September, 1993

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

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